Relationship breakdown - divorce procedure
From April 6 2011 all separating couples will have to at least show that they have been in contact with an accredited mediator and have considered how mediation might work for them. If, having considered mediation, they reject the option, then they will still have the option of taking the matter to court.
The new rules bring all divorce cases into line with the situation where couples have been granted legal aid and those proposing the changes hope it will save money.
Some cases will still be allowed to go straight through to court, such as in cases where there are allegations of domestic violence or child protection matters.
When can I get a Divorce?
In order to get a divorce you need to have been married for more than twelve months. You will also need to show that the marriage has broken down.
To prove that the marriage has broken down you will need to show one of the following:
You do not need to know the identity of the person that your spouse has committed adultery with and you do not need to name them on the Divorce Petition. However, if your spouse denies the adultery then you may be requested to prove it. This can be very difficult and for this reason divorce petitions based on this ground do not always succeed.
You will be asked to give examples in the divorce petition about your spouse's unreasonable behaviour. You must also state why this has made it difficult for you to continue living with them. You may use adultery as an example and you would not need to prove the adultery. This may be a better option than relying on adultery as the only ground.
2 Years Desertion
You will need to supply the date of when your spouse left you and show that you have not heard from your partner since that date. You cannot start divorce proceedings until your spouse has been left for two years.
2 Years Separation
In order to use this ground for divorce your spouse must agree to the divorce. You will need to put the date of the separation on the divorce petition and state briefly the reason for the separation. If you do not know the exact date of the separation you can give an approximate date as long as it can be clearly shown that two years have passed.
5 Years Separation
You do not need your spouse's consent to divorce on this ground. This ground is therefore useful if you know that you will have difficulty getting your spouse's consent. You will need to give details of the date of the separation and brief reasons why you separated.
Starting Divorce Proceedings
Note: from 22 April 2014, proceedings will have to be issued in the newly created Family Court. In most cases, you will have to consider mediation by attending a Family Mediation Information and Assessment meeting before making a court application about arrangements for children or financial proceedings following separation or divorce.
You can find details of your nearest Family Court by entering the area of law and your postcode using the court and tribunal finder on the GOV.UK website at www.gov.uk. You are then informed by HM Courts and Tribunals Service where your case will be heard.
All outstanding family proceedings that were issued in a county court or family proceedings court before 22 April, will continue in the Family Court. Any applications received but not issued on or before 21 April will be issued in the Family Court.
- The Applicant's solicitors (or the applicant) send the Divorce Petition, with the court fee and the marriage certificate, to the court. If you have children, the Divorce Petition should be accompanied a statement about the arrangements for children.
- The court will register the case, process the papers and send copies of the Petition, the statement of arrangements for children and an Acknowledgment of Service form to the Respondent or the Respondent's solicitors.
- The Respondent or their solicitor will fill in the Acknowledgment of Service form, stating that the papers have been received and read and that the divorce is not being contested.
- The Acknowledgment of Service is filed by the court and a copy of the completed form is sent to the Applicant or the Applicant's solicitor.
- The Applicant's solicitor or the Applicant prepare an Affidavit (a sworn statement) stating on oath that the contents of the Divorce Petition are true. The Solicitor or the Applicant then file the Affidavit at court along with a form requesting that the divorce papers are considered with a view to granting the decree nisi.
- The District Judge considers the filed papers and decides whether a decree nisi should be granted. If the Judge decides that the decree nisi should be granted then both parties are notified by the Court of the date and time when the decree nisi will be announced in court.
- The court pronounces the decree nisi. It is not necessary for anyone to attend court on this date as it is simply a formality.
- A sealed copy of the decree nisi is sent to both parties or their solicitors.
- Six clear weeks after a decree nisi has been granted the Applicant or their solicitor can apply for a decree absolute. If no application is made the Respondent can apply for a decree absolute three months from the date of the decree nisi. If no application for a decree absolute has been made within one year the Applicant must explain the delay to the court who then have a discretion to grant or refuse it.
- The court sends the sealed decree absolute to both parties or their solicitor. The marriage has now officially ended.
Can I get my Marriage Annulled?
Under certain circumstances you may be able to have your marriage annulled. You must apply to annul the marriage within a reasonable period of time, in some cases this will be three years. There is no requirement to have been married for twelve months.
Examples of when you may seek an annulment of your marriage are:
- The marriage has not been consummated.
- At the time of marriage your spouse was already married to someone else.
- One of you was under 16 years of age when you got married.
- You have married a close relative.
- Your spouse had a venereal disease at the time of marriage and they knew about it but you didn't.
- Your spouse was pregnant with another person's child at the time of the marriage and they knew about it but you didn't
A divorce can take as little as four to five months from start to finish, although it may take much longer. The time taken is very much dependent on the complexities of the finances involved. This are normally dealt with between the time of Decree Nisi being granted and the application for Decree Absolute.
How do I pay for it?
You can't get legal aid for most private family law cases such as divorce, or disputes about children and finances unless you're a victim of domestic violence or abuse. Domestic violence or abuse covers psychological, physical, sexual, financial or emotional abuse. You can get legal aid for family mediation.
If you are eligible for legal aid, you must meet the financial criteria.
How Can We Help
Divorce is a difficult time for those involved. The courts are concerned that disputes are not brought to court unless there is no other alternative. Generally, a settled divorce will be less costly than a contested divorce case. With this in mind,our qualified and experienced family team will seek to advise you throughout the divorce process, as well as offering you information about alternative resolution options. We can also help you with the protection and distribution of jointly owned assets, both property and financial, and with any issues relating to your children.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.