Understanding Divorce and Judicial Separation
An application for Divorce cannot be made within the first year of marriage.
The person who starts the Divorce proceedings is called 'the Petitioner' and his/her spouse is called 'the Respondent'.
Ground for Divorce:
Under the law in England & Wales, there is only one ground for Divorce; that the marriage has broken down irretrievably.
Facts to support the ground:
To satisfy the Court that the marriage has broken down irretrievably, the Petitioner must prove one of the following five facts:
1. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
2. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent
3. That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the Divorce
4. That the parties to the marriage have lived apart for a continuous period of at least two years immediately before the start of the Divorce and the Respondent consents to a decree being granted
5. That the parties to the marriage have lived apart for a period of at least five years immediately before the start of the Divorce.
The Divorce Petition
The application form for a Divorce is the Divorce Petition. The Petition will state the "fact" upon which the Divorce is requested and give further details confirming this.
The Statement of Arrangements for Children
In order for a final Divorce to be made the Court must certify that the arrangements for any children have been considered and are satisfactory. A document must therefore be sent to the Court at the same time as the Divorce Petition called the Statement of Arrangements for Children. This sets out what the arrangements for the children are. If possible this should be agreed and completed by both Petitioner and Respondent. If agreement is not possible then the Petitioner only will complete it. If that happens the Respondent will have an opportunity to make comments upon what is in the Statement of Arrangements.
The Petitioner sends the Divorce Petition and Statement of Arrangements for Children to the Court, together with the original marriage certificate. There is a Court fee for issuing divorce proceedings of £300.
The Acknowledgement of Service
Once the Court has processed the Divorce Petition and Statement of Arrangements for Children, copies are sent to the Respondent by post together with a form known as the Acknowledgment of Service. The Respondent completes this form and by this form he/she will indicate whether they intend to defend the divorce. Only a minority of divorces are defended.
The Respondent has eight days from receipt of this form to return it to Court. Should the Respondent fail to return the Acknowledgement of Service, further steps can be taken to prove that service of the Divorce Petition has taken place, in order to progress the divorce without having to wait to receive the Acknowledgement of Service.
The Decree Nisi
Decree Nisi is a declaration by the Court that it is satisfied that the parties are entitled to a divorce.
When the Petitioner receives the Acknowledgement of Service form back from the Court, or once service of the Petition has been proved, an application for Decree Nisi can be drafted. The application for Decree Nisi is by an affidavit, sworn by the Petitioner, and there is an oath fee of £7. The forms applying for Decree Nisi are sent to the Court and it is at this point that the Court will decide whether the parties are entitled to a divorce. If the Court approves the application, a date will be set on which the Decree Nisi will be pronounced. The parties do not need to attend this hearing.
The Decree Absolute
A Decree Absolute is an order of the Court dissolving the marriage.
The Petitioner can apply for Decree Absolute six weeks after the Decree Nisi has been pronounced. There is a Court fee of £40.
If the Petitioner fails to do so, the Respondent can apply for Decree Absolute after a further three months and the Court fee will then be £80.
It is usually not advisable to apply for Decree Absolute until the finances have been settled.
Time scale
A Divorce can take as little as six months from start to finish, however this depends on prompt application for each stage of the Divorce. The time taken is very much governed by the complexities of the finances involved. It is generally the finances that take the most time.
Judicial Separation
Instead of a divorce, parties may choose to issue Judicial Separation proceedings. Parties can be married for less than one year in order to issue such proceedings. The procedure for this is very similar to that of the divorce however it is not necessary to show that the marriage has broken down irretrievably. It is however still necessary to show one of the five "facts" referred to above.
The process concludes at the stage where the Decree Nisi is made. By proceeding in this way, the Court has the power to deal with the parties’ financial positions as it would upon a divorce. It is however not normally advisable to proceed with a Judicial Separation unless absolutely necessary, if for no other reason than if the parties’ later proceed with a divorce, it is necessary to begin the whole process all over again.
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