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Understanding your divorce proceedings’

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At Wards Solicitors, our family lawyers are experienced in providing practical and supportive advice and can help you identify and prioritise the issues. This factsheet is designed to give you information on divorce procedure. We have further factsheets on finances, children and injunctions. If you have any questions, please do not hesitate to contact us.

Obtaining the divorce itself is usually quite straightforward, particularly if the couple agrees that the marriage is over. Difficulties tend to arise in resolving practical issues such as how to separate, where to live, arrangements for the children and property and money matters.

Outlined below is a broad framework of the divorce process which highlights key points and sets out a typical timetable.

Who can start divorce proceedings?

Anyone who has been married for over a year provided one of the couple either lives in or has lived in England or Wales during the previous year. It does not matter where the couple married.

On what grounds can a divorce or judicial separation be started?

For divorce or judicial separation proceedings, the marriage must have irretrievably broken down and one of the five following ‘facts’ needs to be proved:

  1. Your husband or wife has committed adultery and you find it intolerable to continue living together.
    As the legal definition of adultery is voluntary sexual intercourse between a man and a woman who are not married to each other, but one or both are married to someone else, the fact cannot be relied on by a same sex couple unless the respondent’s adultery was with a person of the opposite sex.  A sexual relationship with a third party of the same sex could be used as an example of the respondent’s unreasonable behaviour.
  2. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
  3. Your spouse has deserted you for a continuous period of 2 years or more.
  4. You and your spouse have been living separately for 2 years or more, and your spouse agrees to the divorce.
  5. You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

The difference between divorce and judicial separation proceedings is that the latter leaves you still legally married to your husband or wife and are therefore unable to get remarried.

If the marriage has irretrievably broken down, what happens next?

We will draft the paperwork to start the proceedings. Your marriage certificate has to be sent to the court at the start of yourcase and will not be returned to you. If thiscauses you a problem, please tell to us.

When are financial issues dealt with?

It is not necessary for financial arrangements to be completed by the time the divorce is final. Frequently they will still be in the early stages. However, it should at least be possible to resolve immediate problems and make any interim maintenance arrangements.

We may advise you to delay application for the Decree Absolute ending the marriage until a financial settlement is finalised, to protect your rights.

Are the proceedings public?

Court proceedings in family law are usually private. This means that the public and press are not allowed access to the court papers.

However, the press are able to publish the fact that a Decree Nisi has been pronounced. The information that they may disclose is very limited.

They can disclose the ‘facts’ of the divorce but they are not able to publish details, e.g. of the unreasonable behaviour.

 

Timetable for divorce

1. After one year of marriage.

Either spouse, if they have grounds, may start the divorce. He or she is called the Petitioner. The Petition is sent to the court. A court fee is payable, unless the Petitioner is exempt.

2. Within a few days of sending the Petition to the court.

The court sends a copy of the Petition to the other party, (called the Respondent) or to his or her solicitor if there is one.

3. From the date the documents are received, the Respondent has time limits.

  • Within 7 days

The Respondent should send the court a Acknowledgement of Service form, which accompanied the petition. This asks whether they intend to defend the case.

  • Within 28 days of receipt (longer if the documents are sent abroad)

The Respondent must, if he or she intends to defend the Petition, file a defence (called an Answer). The Petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings resulting in a fully contested hearing are very rare. However, a delay in finalising the divorce is inevitable.

4. On receiving the Acknowledgement of service from the Respondent.

The court sends the Petitioner’s solicitor a copy of the acknowledgement of service.

5. If the Respondent is not defending the Petition, the Petitioner can apply for the Decree Nisi to be pronounced.

The Petitioner’s solicitor prepares a Statement confirming that the contents of the Petition are true and whether any circumstances have changed. The Petitioner signs the Statement confirming it is true and it is sent to the court requesting a date for the first decree of divorce (‘Decree Nisi’) to be pronounced.

6. If the Acknowledgement of service is not returned to the court.

Proof that the Respondent and anyone else named have received the petition will have to be obtained before the Petitioner can take the next step.

7. On receipt by the court of the application for a date for pronouncement of the Decree Nisi and Statement.

A District Judge reviews the papers and usually gives a certificate for the Decree Nisi to be pronounced. Both the Petitioner and the Respondent are then advised of the date fixed for Decree Nisi. This is likely to be a few weeks after. The couple do not have to attend court.

8. At least six weeks after the Decree Nisi.

a) The Petitioner may apply for the final decree (‘Decree Absolute’). This Decree may be available as quickly as the same day.
b) The Respondent can apply for the Decree Absolute if the Petitioner has not already done so. However, such an application is not automatically granted. If you are in this position as a Respondent we will provide you with full advice.

Please click here for more information on divorce and relationship breakdown and our fixed fee divorce options

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