If divorce is the only available option, how do you decide on what steps to take for the best? What is the process?
Getting divorced is a big decision and a big subject. Everybody’s lives are different and so are their divorces. Whatever you do, don’t bury your head in the sand. It may be tempting to pretend that the relationship breakdown isn’t happening, but you have important decisions to make and these choices are likely to have a significant impact upon the emotional and financial outcomes. Divorce proceedings are generally straight forward and undefended. Of course, as in life, some cases are not as straight forward, but the following is a step by step general process to a straight forward divorce.
The petitioner, the person initiating the divorce, issues the divorce petition – at this stage you will need to decide what “fact” you wish to rely on. There is only one “ground” for divorce. There is no such ground in English law as ‘irreconcilable differences’ despite frequently reading about Hollywood celebrities citing these in divorce papers. In England and Wales, divorcing couples must demonstrate the ‘irretrievable breakdown of their marriage’ and this is proven by relying on one of five facts:
- Adultery – it is worth noting that, even though same sex couples can now marry, adultery can only take place with members of the opposite sex. In order to cite adultery, you must act within six months of discovering the deed.
- Unreasonable behaviour – this essentially means your partner has behaved badly, so you can no longer reasonably be expected to live with them. The behaviour doesn’t need to be extreme and the important point to note is; if you find their behaviour unacceptable
- Desertion – your partner’s departure must meet one of the following conditions: they left without good reason; they left without your agreement; they left to end your relationship; they have left you for more than two years in the past two and a half years
- Two years separation, with consent – you must have lived apart for more than two years and your partner must agree to the divorce
- Five year separation – you have lived apart for more than five years. In such cases, your partner need not agree to the divorce
Once the petition has been issued the Court will serve the divorce papers
Acknowledgement of service – the respondent, the other party to the divorce, returns to the court, the acknowledgment of service. This form indicates whether they intend to defend the divorce and indicates whether they object to paying your costs.
Application for decree nisi and statement in support – once the acknowledgment of service is received by the court, the court will send the petitioner a copy. The petitioner then completes an application for decree nisi and a statement in support of the divorce. These documents are filed with the court and the Judge will consider whether the Petitioner is entitled to a divorce – usually they will be.
Certificate of Entitlement – if the Judge considers that the petitioner is entitled to a divorce, a date will then be set for the pronouncement of decree nisi. At the same time, the Judge will consider whether any cost orders should be made against the respondent.
Decree Nisi – at decree nisi stage the parties are almost, but not quite, divorced. The parties are still able to change their minds about getting divorced. That is why it is called nisi: the Latin term for “unless.” There is a six week and one day minimum mandatory period between grant of decree nisi and decree absolute. This means if the parties change their minds, they will remain married.
Decree Absolute – after six weeks and one day the Petitioner can apply for Decree Absolute from the Court. This is the Decree that dissolves the marriage. The application is sent to court and the court office seals and issues a certificate of decree absolute.
In some cases the Petitioner may refuse to apply and in those cases the Respondent may apply, three months after the earliest date that the Petitioner could have done so. The Respondent will need to make an application with the court, which will hear the application and make the decision. It is not automatically granted as it would be if the Petitioner is applying.
Sometimes more than a year may have passed since the decree nisi. In such cases, the process is slightly different and it is necessary to explain to the court why time has elapsed and in particular whether the parties have resumed cohabitation or whether there has been a child born. It is rare for the court to require a hearing, but when circumstances are unusual it may be required.
It may be advisable to hold off applying for Decree Absolute for many reasons such as until financial matters have been resolved. You should take legal advice before applying for Decree Absolute.
When you finally receive your final decree, do remember to keep a note of your court number and the certificate of decree absolute in a safe place – if you re-marry, you will need to produce the original sealed copy as evidence that you are legally free to do so. If you lose it, you can obtain a further copy from the court where the divorce took place, but you’ll need to quote the court reference number. If you don’t remember, the court, the Principal Registry of the Family Division can undertake the same exercise, but it will take longer.
For most parties, a divorce obtaining the decree absolute is the final step towards rebuilding your life.
If you would like legal advice please contact The Family Law Company, where we have specialist Lawyers in Divorce and Finance to help and guide you through this process.