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More than one in three marriages in England and Wales ends in divorce. Where both parties to a marriage wish to divorce, the actual legal process involved is relatively straightforward. Where difficulties generally arise is over custody arrangements for children and over the division of the family assets.
There is only one valid ground for divorce, which is that the marriage is considered by the court to have irretrievably broken down. If you think that there is a possibility that any marital problems you are having could be overcome, it is important to investigate this possibility first.
The person who commences the divorce proceedings is referred to as the ‘petitioner’ and their spouse as the ‘respondent’. To satisfy the court that an irretrievable breakdown of the marriage has occurred, the petitioner has to establish one of five facts:
1. The respondent has committed adultery and the petitioner finds it intolerable to carry on living with them;
2. The respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live with them;
3. Immediately prior to the divorce proceedings having been commenced the respondent has deserted the petitioner for a continuous period of two or more years;
4. Immediately prior to the divorce proceedings having been commenced the petitioner and the respondent have been living apart for a continuous period of two or more years and the respondent consents to a divorce; or
5. Immediately prior to divorce proceedings having been commenced the petitioner and the respondent have lived separately for a continuous period of five years or more.
Once the divorce petition has been agreed and signed, it is sent to the court, together with the marriage certificate and details of any children and the arrangements being made for them.
If the court is satisfied that there are sufficient grounds for a divorce, the petition is ‘served’ – i.e. posted to the respondent, who then has a limited period to complete and return an Acknowledgment of Service form, confirming that they have received the petition.
When the form is returned to the court, a copy is sent to the petitioner. The next step is for the petitioner to swear an affidavit in support of the divorce petition, confirming that the details contained in it are correct. This is then sent to the court, which reviews the papers. Where there are children involved, further information on the arrangements made for them may be requested. If the court is satisfied that the documentation is in order, a date is set for the decree nisi to be pronounced. Financial matters and arrangements for children will need to be approved by the court at this stage. The decree nisi is the first step towards the divorce.
The final stage in the divorce process is the decree absolute. The petitioner can apply for the decree absolute six weeks and one day after the issue of the decree nisi. The respondent can apply for the decree absolute after a further 3 months, if the petitioner fails to do so. At this stage, the court will check that all the necessary arrangements are in place and, if satisfied, grant the decree absolute. When you receive your decree absolute, the divorce is final and you are no longer married.
In 2013 the Government effectively removed legal aid for family disputes and it is now normaly for the financial side of a divorce to be dealt with through a mediated process.
We can advise you on all aspects of family law.
