Divorce Procedure

The mechanics of obtaining a divorce can be quite straightforward, particularly if the couple agree that the marriage is over.

Any difficulties tend to lie in resolving the related practical issues stemming from divorce such as how to separate, where to live, arrangements for the children and any money matters.

Your attention will probably be concentrated on those related issues. The purpose of this guide is to outline a broad framework of the divorce process to highlight key points and to set out the sort of timetable to expect.

1. Who can start divorce proceedings?

Anyone who has been married for over a year provided  legal requirements concerning habitual residence or domicile are met. It does not matter where the couple were married.

2. On what grounds can a divorce be started?

The only ground for divorce is that the marriage has irretrievably broken down but there is a complication. A divorce will only be granted if one of the five “facts” laid down by law, proving irretrievable breakdown, is established.

3. What are the “facts”?

  • Your spouse has committed adultery and you find it intolerable to live with  him or her.
  • Your spouse has behaved in such a way that it would be unreasonable to expect you to continue to live together.
  • Your spouse has deserted you for a continuous period of two years or more.
  • You and your spouse have been living separately for two years or more and your spouse agrees to the divorce.
  • You and your spouse have been living separately for five years or more, whether or not your spouse consents to the divorce.

4. If the marriage has “irretrievably broken down” and one of the five facts applies, what happens next?

This will depend upon your particular circumstances. It is sensible to try to obtain your spouse ’s co-operation and to reach agreement over the contents of the paperwork.

For example, if your spouse accepts that the divorce should be based on behaviour, only a brief outline of the behaviour will be necessary.. Not saying all that might be said will not prejudice you. Another example: in an adultery Petition it is unnecessary and generally undesirable to name “the other party”.

5. What does the Petition (the document used to start proceedings) actually look like?

Every Petition follows the same form. It contains basic information about names, addresses, date of marriage and a statement that the marriage has irretrievably broken down. It will also state the “fact” on which it is intended to rely.

The Petition will include a section (known as a “prayer”) which will include a request for the divorce to be granted. It may also include a claim regarding the costs of the divorce, and list possible financial orders which may be sought. It is good practice in most cases to send a copy to the other party before starting proceedings.

6. What about the children?

The court will not get involved unless either party makes a formal application.

7. How much does divorce cost?

This depends how straightforward and or complex the divorce turns out to be. Those who are unemployed or on a low income may be eligible for advice under the Legal Help Scheme, although this is now only available in very limited circumstances.

This means the State will pay the majority, if not all, of the solicitor’s costs. Those who are ineligible for Legal Help should ask his/her own solicitor for an estimate of the likely costs. Solicitors are obliged to provide an estimate of their costs at the beginning of the case.

8. Are financial issues dealt with before the divorce is finalised?

It is not usual for financial discussions or negotiations to be completed by the time the divorce is completed. Frequently, they will still be in the early stages, especially if finances are complicated.

However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements, if necessary. If not the court can help.

9. 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 divorce has been pronounced, though this is rare unless the individuals involved are in the public eye.  The information that they may disclose is limited.

10. Procedure:

10.1 After one year of marriage.

Either spouse may start the divorce. He or she is referred to as the “Petitioner”. The Petition is sent to the Court together with the Marriage Certificate. A fee is payable to the Court.

10.2 Within a few days of sending the Petition to the Court.

The Court sends a copy of the Petition to the other spouse, referred to as the “Respondent”. A copy of the Petition is also sent to anyone named in an adultery Petition. That person may be referred to as a “Co-Respondent”. If the Respondent (or Co-Respondent) has instructed solicitors, the Petition may be sent to them.

10.3 From the date the documents are received the Respondent has strict time limits to observe.

Within 8 days he or she should send to the Court a form called an “Acknowledgement of Service” which accompanied the Petition. The form asks the Respondent whether he or she intends to defend the Petition, whether any claim for costs is disputed and other technical questions.

Within 29 days (longer if the documents have to be sent to an address abroad), whether or not an Acknowledgement has been filed, 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 if an Answer is filed.

10.4 Within a few days of receiving the Acknowledgment of Service from the Respondent (and Co-Respondent).

The Court sends to the Petitioner’s solicitor a copy of the form(s) of Acknowledgment of Service.

10.5 If the Respondent is not defending the Petition, the Petitioner can apply for the first decree of divorce (the Decree Nisi) to be pronounced.

The Petitioner’s solicitor prepares a formal statement for the Petitioner to sign confirming that the contents of the Petition are true. It will also state whether any circumstances have changed since the filing of the Petition. The document will then be sent to the Court with an application for a date for the Decree Nisi to be pronounced.

10.6 What if Acknowledgements of Service are not returned to the Court?

Proof that the Respondent and any named Co-Respondent have received the Petition will have to be obtained before the Petitioner can take the next step.

This may involve arranging for someone to deliver the Petition to the Respondent and any named Co-Respondent personally,  relying on alternative proof of delivery, or, exceptionally, obtaining a Court Order that proof does not need to be given that the Respondent and Co-Respondent have received the Petition.

10.7 On receipt by the Court of the application for a date for pronouncement of the Decree Nisi.

The District Judge looks through the papers and, if they are in order, gives a Certificate that he or she is satisfied with the arrangements for the children and a Certificate for the Decree Nisi to be pronounced.

Both the Petitioner and the Respondent (through their solicitors) are then advised of the date fixed for Decree Nisi. Depending on the Court’s diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend Court unless representations need to be made to the District Judge on the question of costs.

10.8  The final stages.

Six weeks after the date of the Decree Nisi, the Petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form and fee to the Court. This step is not automatic. This Decree will be processed quickly.

There are sometimes reasons why it is inadvisable for the Petitioner to apply for the Decree Absolute as soon as it is available. Those reasons usually relate to the situation with regard to the financial negotiations, and each Petitioner will be separately advised depending on the facts of their case.

Three months after the Petitioner could first have applied for Decree Absolute, the Respondent may apply for the Decree Absolute if the Petitioner has not already done so.  This is a more involved process, usually including a formal Court hearing.

For further information or to arrange your free half-hour initial consultation please contact the Family team on 01249 712193 or email family@goughs.co.uk.