What is the process to obtain a divorce?
1. Apply for a Petition Form
You can apply to any county court for a divorce by completing three
copies of Form D8: Petition. This sets out initial
information regarding you and your spouse and any children.
The Petitioner is the person in the marriage
who starts the divorce proceedings.
The Respondent is the spouse.
The Petition Form will set out the basis on
which the court has “jurisdiction” to deal with your divorce, for
example, you and your spouse are living in England and Wales.
There are a number of other situations which are provided for in
the form and we can advise you about these.
Divorce proceedings in England and Wales
In most cases, it will be clear that the divorce will take place in
England and Wales.
However one side of the divorcing couple may choose to issue
divorce proceedings outside of England and Wales. If you think this
may be the case, yet you want the divorce and any resulting
financial issues to be dealt with in England and Wales it is vital
for you to issue proceedings within England and Wales as soon as
possible.
Divorce proceedings will usually continue in the country where
proceedings are first started. The choice of which country should
deal with the divorce will be determined by a number of factors
including the law of the other country where proceedings could be
issued. If you are in this situation, contact us to seek urgent
advice about this.
2. Arrangements for Children
If you and your spouse have any children between you, you will need
to complete Form D8A: Statement of Arrangements for Children. This
asks for details about your children and allows you to list any
arrangements that have been made or proposed regarding contact with
each parent.
3 Marriage Certificate
You will need to
submit your original marriage certificate. If you no longer have
this, a certified copy can be obtained from the registrar for the
district where the marriage took place or from the General Register
Office. We can advise you about this. You should be aware that the
court will retain your original marriage certificate.
Court Fee
A fee of £300 is payable to Her Majesty’s Courts Service (HMCS) on
submission of the divorce papers to the court. Some people are
exempt from paying this fee. You will need to complete Form EX160:
Application for a fee exemption or remission. We can advise you on
whether you are applicable for this exemption.
When and why is divorce the only
option?
Divorce proceedings usually follow when a
marriage has “irretrievably” broken down. The breakdown of
the marriage is proven in one of five ways:
• Adultery
• Unreasonable behaviour
• Desertion for a period of two years
• Separation for a period of two years with consent for a
divorce from the other spouse
• Separation for a period of five years
We can advise you on the most appropriate ground to commence
your divorce proceedings. A very common ground for divorce is based
on the “unreasonable behaviour” of the other spouse. If you
commence proceedings based on your spouse’s unreasonable behaviour,
we will work with you to cite enough behaviour to satisfy the court
that the marriage has broken down however we will advise you on how
to reduce the potential for any unnecessary hostility.
Citing a few particulars of your spouse’s unreasonable conduct
is generally enough to satisfy the court the marriage has broken
down. Our Solicitors are members of an organisation called
Resolution which actively promotes a non-confrontational approach
in family proceedings.
What happens after I have sent my Petition to the
Court?
Once the divorce papers have been submitted to
the court, the court will send a copy of your petition form,
statement of arrangements for children form and a form of
acknowledgement of service to your spouse. He / she will then have
eight days (from the date they receive the papers) to complete and
return the Acknowledgement of Service Form to the court.
If your spouse (the Respondent) does not return the
Acknowledgement of Service Form, we will discuss your options with
you. This may include serving the Respondent with the court
documents personally.
Once the Form of Acknowledgement has been sent back to the
court, you will be required to swear a statement (affidavit)
confirming the contents of your divorce petition are true. We can
prepare the statement for you.
A standard Form of Application will need to be submitted to the
court. Once received, a Judge will consider your petition and
affidavit and if everything is in order, a date will be set for the
pronouncement of the “decree nisi”.
What is the decree nisi?
The decree nisi is the first of the two decrees you need to have
before you are considered divorced. The decree nisi does not end
your marriage, but it confirms that the court is satisfied that you
are entitled to a divorce. The decree nisi is pronounced in open
court on a date fixed by the court. There is no need to attend
court to hear the pronouncement of the decree nisi however you may
wish to do so, for example when you wish to object to an order made
for you to pay the costs of the divorce. We can advise you
about this.
Your marriage will legally end when either the Petitioner or the
Respondent applies to court for, and you are granted a “decree
absolute”.
What is the decree absolute?
This is the second and final decree which states that you are now
divorced. The Petitioner can apply for the decree absolute six
weeks and a day after the decree nisi is pronounced.
If the Petitioner does not apply for the decree absolute when
entitled to do so, the Respondent can apply for the decree absolute
four and a half months after the decree nisi is granted.
There are sometimes important reasons why a couple delay
applying for the decree nisi to be made absolute. For example
if there are financial issues that need to be resolved. This also
prevents spousal benefits under pensions or life policies from
being lost if one party were to die in the meantime. We can advise
you further about this.
Making a will following a divorce
Following a divorce, your legal status has changed and in some
areas it has made you vulnerable. It is a very important time to
update any will you may have made. Please ask us about this as we
have a specialist wills team who can advise you.
This briefing note states the law and practice on divorce as at
February 2009. Please note that it is intended as a general
guide and you should seek specific professional advice to cater for
the circumstances of your case.