Why does it matter?
A married couple can separate, carve up their finances, sort out arrangements for their children and move on with their lives, all without divorce. Why is it needed? The most obvious answer is that neither one of the couple can marry again without committing a criminal offence. However, even if neither spouse intends to marry again, there are major pitfalls associated with not divorcing.
The first is that you can never obtain a court order sorting out financial claims. Without a court order, even though you may have reached a financial agreement at the time, there is always the possibility that one or other spouse can come back for further financial provision, even decades later.
The second is that if you die, your spouse (even though estranged) will still be your widow, or widower. They may receive your pension benefits, or the proceeds of your life policy, whether you like it or not. They may also automatically receive other parts of your estate.
Can we divorce in England (or Wales)?
Not everyone who lives in England can get a divorce here. Conversely, there are people who live abroad who can divorce in England. The rules which say who can and can’t divorce here are complicated, and will depend on the exact set of circumstances of each family. The answer will normally depend on where each of you is ‘habitually resident’ (the place where you are actually living and regard as your settled place of residence) and / or where each of you is ‘domiciled’ (the country that you regard as your home).
What are the legal grounds for divorce?
There is only one basic ground, which is that the marriage has irretrievably broken down. This then ‘subdivides’ into five different categories:
- Adultery: One of you has committed adultery and the other person finds it intolerable to live with them as a result. You cannot bring a divorce petition on your own adultery. A gay relationship (even if sexual) is not ‘adultery’. If you live together without starting divorce proceedings for more than 6 months after the last incident of adultery was discovered, you lose the ability to ‘use’ that adultery for divorce proceedings. The person with whom a spouse has committed adultery is almost never involved (or even named) in the divorce proceedings.
- Unreasonable behaviour: One of you has behaved unreasonably, so much so that the other person cannot reasonably be expected to live with them. The behaviour does not have to be outrageous. It also doesn’t have to be intentional. Often, a consistent lack of love or attention may be enough. However, it can be dangerous to use only trivial behaviour, because the court has to make its own decision as to whether the behaviour is so bad that the other person cannot live with the person who is behaving in that way.
- Desertion: The person who is responsible for the ‘desertion’ must have separated from the other person intentionally, against that other person’s will, for a continuous period of at least two years, without a good reason. This ground is almost never used nowadays because any ‘abandonment’ would probably be easier to allege as an example of ‘unreasonable behaviour’, particularly as one would not have to wait for two years.
- Separation for 2 or more years: If the couple have been living apart from each other (this can be done whilst living in the same house, although they would have to prove to the court that they have been living completely separate lives from one another) for 2 years, and they both agree to divorce.
- Separation for 5 or more years: If the couple have been living apart from one another (again, not necessarily in separate houses) for over 5 years, a divorce can succeed on this ground, even if only the person starting the proceedings wants the divorce.
Can we divorce if we fall out on the honeymoon?
No. Married couples cannot start divorce proceedings until they have been married for a full calendar year.
Can we get divorced as soon as we separate?
Yes, but only if the grounds of adultery or unreasonable behaviour are used.
Does it matter who divorces whom, and for what reason?
To a large extent, no. It almost never affects how the finances of the couple are divided up (unless there is some kind of really extreme unreasonable behaviour, which has a direct and significant impact on the couple’s financial position, e.g. extreme and compulsive gambling) and there is certainly no ‘penalty’ for being the one to leave, or being the one to have the affair.
It can affect who pays the legal costs of the divorce. There is a general assumption that the person who is ‘at fault’ for the divorce will pay the legal costs of the divorce proceedings. However this doesn’t include the legal costs of any other proceedings which are triggered by the divorce, such as proceedings regarding the finances of the marriage.
To a large extent, the biggest deciding factor is whether the couple want to divorce straight away (in which case they will go for adultery or unreasonable behaviour), or whether they are prepared to wait. If they want to divorce straight away, the choice of who starts the proceedings can be made for them, for example if only one of them has committed adultery. If the couple can only rely on ‘unreasonable behaviour’ the choice of who starts is much more difficult.
Can we divorce using ‘Collaborative Law’
Absolutely. However, it is important that the collaborative process is used to discuss and agree on the best way to deal with the divorce proceedings before anyone starts those proceedings.
What is the normal procedure?
Stage 1 – the petition
The initial procedure for all divorces is the same, namely that the person who starts the divorce (called the ‘Petitioner’) files a divorce ‘Petition’ with the court. That document has to contain certain, very specific information, such as the exact location of the marriage, the previous and current names of the couple, details of where they both live and what they do for a living, details of their children, why the ‘petitioner’ thinks that the divorce can take place in England, and of course the reason for the breakdown of the marriage (i.e. one of the five ‘grounds’ above).
There is also some important wording put in at the end of the divorce petition which allows the ‘petitioner’ to make financial claims against the other person (called the ‘Respondent’), either straight away or at some point in the future. Whether or not the Petitioner actually takes those claims forward is another matter.
The ‘Petitioner’ has to hand the original marriage certificate over to the court with the divorce petition. If there are any children the ‘Petitioner’ also has to complete a court form called a ‘Statement of Arrangements for Children’. This form simply sets out the current arrangements for the day to day care, schooling and financial upkeep of the children, as well as mentioning any health problems for the children. It is also supposed to highlight whether there are satisfactory arrangements in place for the children to see both parents.
At this stage, a court clerk will check the petition and will reject it if there are any errors or omissions.
Stage 2 – the response
The Petition (and – if relevant – the Statement of Arrangements) is then sent to the ‘Respondent’, along with a couple of further standard court forms; one giving the Respondent further information about the process, and the other (called an ‘Acknowledgement of Service’) being the form that the Respondent fills in and returns to say what they think about the divorce proceedings, e.g. do they agree with the information in the Petition? Are they the Respondent? Do they accept what is alleged against them in the Petition? Do they intend to defend the proceedings? Will they pay the divorce costs (if claimed against them)? Do they agree with what is in the Statement of Arrangements?
Stage 3 – dealing with the response
The procedure followed in the overwhelming majority of cases is undefended divorce, because once one person in the marriage goes so far as to start divorce proceedings, it is normally clear to the other person that it would be pointless and costly to try to stop the divorce from happening.
The procedure for undefended divorces is – rather oddly – referred to as the ‘Special Procedure’.
The Petitioner receives a copy of the Respondent’s Acknowledgement from the court. They then need to attach that to a sworn statement (an ‘affidavit’) which either confirms that all of the details in the Petition and Statement of Arrangements are still true and correct, or advises the court of any changes. The affidavit also asks the court for a divorce decree.
Stage 4 – what if there is no response?
Quite frequently, a Respondent will not complete an acknowledgment form within the required time (within 7 days of receiving it). This can be deliberate or accidental. This need not stop the proceedings (unless they are based on two years’ separation with the Respondent’s consent, given that they can only give their consent on the acknowledgment form), as long as the Petitioner can prove that the Respondent has received the divorce papers.
Stage 5 – a judge checks the papers
Once the court receives the Petitioner’s ‘Special Procedure’ application and affidavit, all of the papers go to a judge for the first time. The judge will have to satisfy themselves that the Respondent has been served with the petition, and that the Petitioner deserves, or is entitled to have a divorce petition (for example, they may have to decide whether any ‘unreasonable behaviour’ by the Respondent is bad enough). Also, if there are children, the judge needs to be convinced that the arrangements for them (including contact with each parent) are satisfactory. If they are not convinced, they may not allow the divorce to proceed further until the arrangements have been improved.
If the judge is content that the divorce should proceed, he issues a ‘Certificate of Entitlement to a Divorce Decree’.
Stage 6 – interim divorce decree
When the judge issues the Certificate of Entitlement, a court clerk automatically puts the case in the court diary for 4-6 weeks hence, for the interim divorce decree (known as the ‘Decree Nisi’) to be read out in open court. It is usually listed with a collection of other ‘decrees nisi’. There is no need for anyone to attend court at this point, unless there is an argument over who pays the legal costs of the divorce proceedings.
Stage 7 – final divorce decree
Once the decree nisi has been pronounced, the petitioner has to wait a minimum of six weeks and one day before asking the court (by way of another simple court form) for the final divorce decree (known as the ‘Decree Absolute’). They could wait a lot longer, and they would usually be best advised to wait until they have reached an agreement regarding the finances of the marriage before they do so. Sometime this can take another 1-2 years. If it takes over a year, there is another form to fill in when asking for the decree absolute, which explains the reason for the delay, and confirms that the parties have not lived together during that period.
The court clerk simply processes the application form and issues the decree absolute certificate within a week or so.
If the petitioner doesn’t apply for the decree absolute, the respondent can apply after waiting for at least 3 months after the petitioner could have first applied. However, if the respondent applies, there needs to be a court hearing, and the respondent will normally only succeed if there is no good reason why the petitioner did not apply for the decree absolute.
What if I don’t accept that the marriage is over?
The first thing that you have to do is be realistic. You may think that the marriage is over, but is that enough to save the marriage if the other person is so convinced that the marriage has broken down that that they have actually started divorce proceedings? Even apart from this, if you are being blamed in the petition for committing adultery or behaving unreasonably, and you accept that you were guilty of this behaviour, then there is little that you can do, unless you think that rather than your bad behaviour being the cause of the marriage breakdown, it was actually the Petitioner’s bad behaviour which caused the marriage to break down (in which case, see ‘cross petition’ below).
However, if you firmly believe that you are not at fault, and that the marriage has not broken down irretrievably, you are entitled to defend it. You should however be aware that the process of defend divorce proceedings is extremely drawn out, stressful (the detail of your marriage and its problems will be poured over in court, you will have to give evidence to the judge, you will probably have to ask family and friends to give evidence, the press may attend the hearing), and – if you are employing lawyers – extremely expensive.
What if I don’t accept what is said about me in the divorce petition?
If you are facing a divorce based on your adultery or unreasonable behaviour, you really have three choices in this situation: You can defend the divorce petition (see above), you can file a divorce petition of your own (a ‘Cross Petition’) which says why you think that the marriage broke down, or you can allow the petition to go ahead, but state (in the acknowledgment of service) that you do not admit to the things which are said about you in the petition. With the first two of these options, you have the downsides which I have already mentioned with regard to the delay, stress and cost of the divorce proceedings. With the third of these options, the divorce can go ahead under the ‘special procedure’. Most cases happen in this way.
Where will it happen?
The ‘Petitioner’ has a free choice of starting the proceedings in any county court in England and Wales. However, it will normally make most send to use the court that is local to them.
Do I need a lawyer?
Not to deal with the divorce proceedings themselves. You could deal with the proceedings yourself, and the courts are used to this happening. Alternatively, there are online legal services which you can buy, which help you with the court forms and the procedure. However, it is important to get advice from a lawyer, for the following reasons:
- Without it, you won’t know the emotional impact that the proceedings could have, and how to minimize this
- Without it, you won’t know what – tactically – is the best thing to do
- Without it, you won’t know how to deal with any problems that may be thrown up during the proceedings
- Without it, you may not realize the consequences of completing the divorce before you have sorted out your financial situation
- Without it, you won’t be able to get any guidance on what is an appropriate financial agreement between you and your spouse, which is absolutely vital if you or your former spouse want to ensure that the agreement is secure, by converting it into a court order within the divorce proceedings.
How much will it cost?
If you are dealing directly with the court, all you will need to pay are the court fees at the beginning and end of the proceedings; a total of £340. If you buy an online tool you will have to pay around £100 in addition to the court fees. For undefended divorce proceedings, it takes around four hours’ worth of a lawyer’s time to complete them, at whatever hourly rate they are charging you.
