Divorce Procedure

The mechanics of obtaining a divorce are usually quite straightforward - particularly if the couple agree that the marriage is over. Any difficulties are usually in resolving issues stemming from the divorce such as how to separate, where to live, arrangements for the children and money matters.

Your attention will probably be concentrated on those related issues and the process of actually obtaining the divorce may seem unclear. It may therefore be helpful to outline a broad framework of the divorce process, to highlight key points and to set out the sort of timetable to expect.

Who can start divorce proceedings

Anyone who has been married for over a year provided one or other of the couple is either domiciled here or has been resident in England or Wales during the preceding six months. It does not matter where the couple was married.

The only grounds for divorce is that the marriage has irretrievably broken down. The breakdown is proved by showing that one of the 5 facts laid down by law is established.

What are the "facts"?

• a. Your spouse has committed adultery and you find it intolerable to continue living together.
• b. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
• c. Your spouse has deserted you for a continuous period of 2 years or more.
• d. You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
• e. You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

If the marriage has "irretrievably broken down" and one of the 5 facts applies, what happens next?

This will depend upon your particular circumstances. It is often sensible to try to reach agreement over the contents of the petition. For example, if your spouse accepts that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given. Not saying all that might be said will not generally prejudice you.

What does the petition actually look like?

Every petition follows the same form. It contains basic information about names, addresses, ages of children 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 request for a claim relating to children: a claim regarding costs of the divorce: and an order for financial provision.

What about the children?

A form is sent to the Court with the divorce petition, which outlines the arrangements relating to the children. The law encourages couples to try and agree those arrangements. The form (known as a "Statement of Arrangements") is usually completed by the person filing the petition. Preferably it should be sent to the other spouse before it is filed. If agreement is not reached, this does not prevent the divorce from proceeding.

How much does the divorce cost?

We will provide you with a fixed fee quote for the costs of the divorce on the basis that it is undefended.

Provided that the divorce is not defended, this fee will only be exceeded in the event that the Petition needs to be amended, if a supplemental Petition has to be served, or if your spouse refuses to acknowledge that he or she has received the Petition from the Court.

Are financial issues dealt with before the divorce is finalised?

It is not necessary for financial discussions to be completed by the time the divorce is made final. Frequently they will still be in the early stages if finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements. If the divorce is based upon desertion or separation, the decree absolute can be delayed until the financial issues have been resolved in full.

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 is able to publish the fact that a decree has been pronounced. They may also disclose the "facts" of the divorce or the basic financial settlement.

Timetable for divorce proceedings

10.1. After one year of marriage.
Either spouse may start the divorce. He or she is referred to as the "Petitioner". The petition and statement of arrangements about the children are completed and then sent to the Court together with the marriage certificate. A fee, currently £300.00, is payable unless the Petitioner is being advised under the Legal Help Scheme.

10.2. Within a few days of sending the petition to the Court.
The Court sends a copy of the petition and statement of arrangements to the other spouse referred to as the "Respondent". A copy of the petition is also sent to anyone named in the 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.
a. Within 8 days
He or she should send to the Court a form called the "acknowledgement of service" which accompanies the petition. The form asks the Respondent whether they intend to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are to be sought.
b. Within 29 days of receipt (longer if the documents have been 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.

10.4. Within a few days of receiving the acknowledgement of service from the Respondent (and Co-Respondent).
The Court sends to the Petitioner's solicitors a copy of the form(s) of acknowledgement of service.

10.5. If the Respondent is not defending the petition, the Petitioner can apply for the Decree Nisi to be pronounced.
The Petitioner's solicitors prepare an Affidavit for the Petitioner to swear confirming that the contents of the petition are true. It will also state whether any circumstances have changed (including those relating to the children) since the filing of the petition. The Petitioner will swear the Affidavit before a solicitor or Court Official and it will then be sent to the Court with the request for a date for the first decree of divorce ("Decree Nisi") to be pronounced.

10.6. If acknowledgement of service is 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 or, exceptionally, obtaining a Court order that proof does not need to be given that the Respondent and Co-Respondent have received the petition. This is called "dispensing with service".

10.7. On receipt by the Court of the application and Affidavit a date is fixed for pronouncement of the Decree Nisi.
The District Judge looks through the papers and, if they seem in order, gives 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.

10.8. What normally happens with regard to the children?
If agreement has been reached, the District Judge is unlikely to interfere.
If agreement has not been reached, the District Judge may ask the Petitioner and the Respondent (accompanied by their Solicitors) to attend an informal appointment to explore a solution to the difficulties. The District Judge may also ask for a Court Reporting Officer to become involved. If a solution cannot be reached, this can delay the application for the final decree of divorce.

10.9. If the arrangements in relation to the children are settled between their parents.
a. 6 weeks and 1 day after the date of Decree Nisi, the Petitioner may apply for the final decree ("Decree Absolute") by sending the appropriate form to the Court. This step is not automatic. This Decree will be processed and may be available as quickly as the same day. A further fee of £40 is payable at this stage in all cases.
b. 3 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.