Divorce – The facts and process
What is the process to get a divorce?
Understanding the facts and process of Divorce
You will have had to have been married for at least a year to obtain a divorce. If you have been married for less than a year then you cannot obtain a divorce but you may be able to apply for an annulment if you meet the legal criteria. Divorce refers to orders for married couples and civil partnership dissolution refers to orders for civil partners.
The Process of Divorce
The spouse who starts the divorce is called the “Petitioner” and the spouse who responds to the divorce is called the “Respondent”.
We will need to determine that the Court in England and Wales have the jurisdiction (the legal power) to deal with the divorce. This depends upon habitual residence or domicile of one or both of the parties to the marriage. Our specialist Divorce and Family Law Solicitors will discuss this with you to ensure that the Court in England and Wales can deal with your divorce.
A Divorce is dealt with through the Court and deals with the dissolution of your marriage. You will remain legally married until the final divorce order (Decree Absolute) is made by the Court.
The “Petitioner” needs to prove to the Court that the marriage has irretrievably broken down but then needs to prove that by using one of five facts which are:
- The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. This fact is not available for same-sex couples.
- The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
- The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of this petition.
- The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted.
- The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Our Divorce solicitors will help you to decide which fact is best for you to rely upon.
Once you have decided which fact to rely upon the divorce petition can be completed and, if needs be, sent to your spouse for approval before submission to Court.
Once the petition is sent to Court you will need to send the original marriage certificate and the Court fee (currently £550) or duly completed fee remission form (if you meet the means criteria).
The Court will then issue your divorce and give you a unique case number. The divorce papers will be sent to your spouse and they will then have to return the Acknowledgement of Service form to Court setting out whether they agree to the divorce or whether they wish to defend it or make any other comment.
The Court will send a copy of the Acknowledgement of Service form to the Petitioner who will then be able to apply for the Decree Nisi assuming everything is in order and the divorce is not defended. (If the divorce is defended then the matter will need to be dealt with at a Court hearing when the Judge will make directions for a full hearing).
The application for Decree Nisi is sent to Court and the divorce file will then be looked at by a Judge/Legal Adviser who will consider whether they are satisfied that the Petitioner is entitled to the divorce. The Court will send out a Certificate of Entitlement which will give the date for the Decree Nisi hearing and any costs order that may be made.
You will not usually need to attend the Decree Nisi hearing unless there is an issue with costs. The Court will make the Decree Nisi in everyone’s absence and the Petitioner can then apply for the Decree Absolute six weeks and a day after the date of Decree Nisi.
As set out above the Petitioner can apply for the Decree Absolute six weeks and a day after the Decree Nisi date.
If the Petitioner does not apply then the Respondent can do so three months after the date the Petitioner could first apply. The Respondent has to apply on notice which means that there will be a Court hearing. If the Petitioner has not applied for Decree Absolute due to outstanding financial matters then the Court are likely to refuse to finalise the divorce until a financial Court order is put in place.
The Decree Absolute is the final divorce order and dissolves your marriage. It does not resolve the financial claims that you have against each other and you are advised to obtain a separate Court Order. Please refer to our divorce and finances section for more details.
The process can be more complicated if you do not have the marriage certificate and cannot obtain a certified copy, you do not know where the Respondent is, the Respondent fails to acknowledge the divorce papers or the Respondent defends the divorce. We will be able to explain this to you if it applies to your case.
Lastly, while marriage revokes an earlier will, divorce does not, so revisiting your will on divorce is always a sensible course of action.
We Can Help You
If you have any questions regarding the process of divorce or want to discuss your options with one of our Divorce and Family Law Solicitors, call us today on 0161 785 3500 or fill in the appointment request form and we'll call you back.