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Divorce FAQ: How Does it Work?

View profile for Taylor Devenport
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Divorce FAQ: How Does it Work?

It goes without saying that separation and divorce can be one of the most challenging events that a person can face, both emotionally and financially. This FAQ will seek to offer some clarity in terms of the process for divorce, including an estimate of timescales and costs with the hope of answering some of those important, initial questions for those considering divorce.


Your Questions Answered:

Grounds for Divorce

The process of divorce


Am I eligible for divorce?

You can get divorced in England or Wales if all of the following are true:

  1. You’ve been married for over a year;
  2. Your relationship has irretrievably broken down (see ‘What are the different grounds for divorce?’ below);
  3. Your marriage is legally recognised in the UK (including same-sex marriage);
  4. The UK is your permanent home, or the permanent home of your husband and wife, or the court hold jurisdiction by some other means. This is a complex issue and legal advice is also always advised if this impacts you.
Are there any alternative options to divorce?

If you are married but do not wish to be divorced, you can instead opt for a legal separation.

If you have been married for less than a year and wish to separate, you may consider an annulment.

Alternatively, if you are in a civil partnership, you can apply for a dissolution.


Grounds for Divorce

What are the different grounds for divorce?

In order to succeed with an application for divorce, the court will need to be satisfied that the marriage has irretrievably broken down. This can be shown by producing evidence in accordance with one of the following five grounds:

  1. A party to the marriage has committed adultery and the other party finds it intolerable to continue to live with them;
  2. A party to the marriage has behaved in such a way that the other party cannot reasonably be expected to continue to live with them;
  3. A party to the marriage has deserted the other party for a continuous period of at least two years immediately preceding the issue of the petition;
  4. The parties have lived apart for a continuous period of at least two years’ immediately preceding the issue of the petition, and the party receiving the petition consents to the divorce; or
  5. The parties have lived apart for a continuous period of at least five years’ immediately preceding the issue of the petition.
Will the process of divorce differ depending on which grounds are used?

In practice, it makes little difference to the process as to who petitions for divorce, or even the grounds used. However, if issuing under the grounds of adultery or two years separation, it is necessary for the recipient of the petition to agree to the adultery or divorce, whereas the other three grounds only require the recipient to have been served with a copy of the divorce papers.

A significant portion of petitions are sought based upon the ground of unreasonable behaviour. This is because it can easily be satisfied by the petitioner by providing 4-5 examples of the alleged unreasonable behaviour and, as previously mentioned, the recipient need not agree to the examples or the use of the ground in order to proceed.

Will the length of the marriage of separation impact the divorce process?

There are no time limits for applying for a divorce other than that the parties must have been married for at least one year before issuing the petition.

For anything beyond a year, the only difference in impact that the length of the marriage, or amount of time that the parties have been separated, can have will depend on which of the 5 grounds for divorce can be relied upon.

It should be noted that the length of the marriage and time spent separated can have an impact on any financial proceedings.

What is a ‘no-fault divorce’?

The government’s Divorce, Dissolution and Separation Act 2020 is looking to reform the divorce process to remove the concept of ‘fault’, as many believe this to be out of date.

It is believed that by autumn 2021 ‘no-fault divorce’ will become a reality. This is something that has been long campaigned but, at present, if divorcing within two years of separation, it is necessary for one party to ‘take the blame.’

 


The process of divorce

Once you are content that you are able to satisfy one of the five grounds set out above, it will be time to prepare the divorce petition.

Who can issue a divorce petition?

You can either instruct a solicitor to complete this on your behalf or issue yourself.

If preparing your own petition it is important to ensure this is completed correctly or, much like a will, by the time you realise a mistake in drafting it may be too late to correct this. An incorrectly drafted petition can impact upon the ability to make a financial claim, or even the validity of the divorce itself. However, for example, where mistakes are simply typing issues, this may just mean the petition is returned resulting in delays.

If you choose to instruct a solicitor to issue the petition on your behalf then some practitioners, as a matter of good practice, send the respondent a copy of the divorce before these are filed with the court. This may include a cover letter which can add some context to the petition set.

For instance, this might be to out that whilst the recipient may not agree with the grounds or examples used in the petition, these have not been set out to try cause further contention, but merely because the petitioner has to give examples in order to be able to proceed, and the ground being used may be the only one available with regards to their circumstances.

This approach can sometimes help to reduce animosity between the parties and prevent the recipient from contesting the divorce. Contested divorces can cost tens of thousands of pounds in legal fees only to end with the same result as an uncontested divorce, so these are best avoided where possible.

How can a divorce petition be issued?

Your divorce petition can either be issued online or by completing the required form and sending this to the court, including making payment of the one-off £550 court fee for issuing your divorce.

In certain circumstances a party may be eligible for a complete or part fee-remission. Whether the petition is issued electronically (by email or online) or on paper, you are able to apply to the court for an order that the recipient contribute towards or pay the entirety of your costs associated with bringing the application. Ultimately, it will be at the discretion of the judge presiding over the matter to decide whether to grant this or not, and how much any order for costs should be.

What do I need to apply for divorce?

To apply for the divorce you will need:

  1. The recipient’s full name and address;
  2. Your original marriage certificate or a certified copy of the same (and a certified translation if it is not in English);
  3. Proof of your name change if it has been changed since you married.
What happens after a divorce petition has been issued?

Once the petition has been issued by the court, it will be served on the recipient along with an ‘Acknowledgment of Service’. They will then have 14 days from the date that the petition was served upon them to respond and confirm whether the divorce is agreed or whether they wish to raise a defence and their position on paying the costs of the divorce.

Should they choose to contest the divorce, they will need to file a defence to be served upon the court and the petitioner. The court will then decide how best to proceed and will set further directions for the rest of the proceedings. As stated previously, contested divorce proceedings can be exorbitantly expensive and so should be avoided wherever possible.

If no defence is raised and the petition is agreed by the recipient, the court will set a date for pronouncement of the Decree Nisi. This is a provisional decree of divorce made when the court is satisfied that the petitioner has met the legal and procedural requirements in order to obtain a divorce.

It should be noted that at this stage, the marriage will still exist and the parties will not technically be divorced.

When will the divorce be finalised?

Six weeks after the pronouncement of the Decree Nisi, the petitioner will be able to apply to the court for a Decree Absolute this will, in turn, finalise the divorce.

If the petitioner fails to apply for this, the recipient will be entitled to do so after six weeks, and three months have elapsed since the pronouncement of the Decree Nisi. If an application is made for the Decree Absolute more than twelve months after the pronouncement of the Decree Nisi, the court will require a statement confirming the parties have not cohabited, reconciled and whether any children have been born to either party. The entire process can be completed within 3-4 months’ of the petition being filed subject to court timetables and the cooperation of all parties throughout the process.

What about child and/or financial arrangements?

Separate to the divorce proceedings, you will need to consider whether court assistance will be needed in relation to arrangements for any children of the marriage and/or finances. If intervention of the court is required in relation to either of these matters, they will each need to be dealt with by way of separate applications. However, it is important to note that a financial application cannot be made to the court until a divorce petition has been issued, and the court cannot make a financial order until Decree Nisi for divorce has been made.

For both children and financial proceedings, the courts will want to see that the parties have attempted mediation to reach a resolution before commencing proceedings.

In terms of the various proceedings running at the same time, this would not be an issue, however, it is advisable that a Decree Absolute is not applied for until any financial arrangements have been agreed and sanctioned. This is because pronouncement of the final decree can impact on any possible widower’s entitlement should your ex-partner die before any financial order is made.

What costs are involved when seeking a divorce?

With regards to costs, these will vary dependant on the circumstances of each case.

Should you undertake the entire process yourself, you may only have to pay the court fee of £550 or a contribution towards this if costs are being split.

If you require the assistance of a solicitor, fees will vary dependant on any fixed-fee offerings that the firm may have in place or based upon the hourly rate of your chosen solicitor.


Can I speak to someone at Dutton Gregory about my divorce/separation?

Should you wish to discuss issuing an application for divorce in more detail, our Family team of highly skilled and experienced solicitors can offer a fixed-fee consultation at a rate of £120 + VAT where we can discuss your options and advise on the best steps forward for your specific matter.

These consultations are completely confidential and our solicitors proudly adopt a professional, friendly and sensitive approach which embraces the Codes of Conduct applicable to family law. Many of our team are also members of Resolution. We also offer accredited mediation services.

How can I get in contact with a solicitor to discuss my matter?

To arrange an appointment, contact us today:

📞 02380 221344 or 01202 31500

📧 contact@duttongregory.co.uk