Divorce procedure
First Stage - issue proceedings
The first stage of divorce is obtaining what is known as a "Decree nisi". This is granted if the court is satisfied the marriage has irretrievably broken down, and this is proven by showing one of five facts:
- Adultery - with consent
- Unreasonable behaviour - without consent
- Separated for two years - with consent
- Separated for five years without consent
- Desertion for at least two years
Your spouse's unreasonable behaviour must be so intolerable that nobody could reasonably expect you to carry on living with him or her. It could include, for example, financial recklessness, drinking, gambling, or lack of emotional support. You cannot base your divorce on this if you then live together as a married couple for a period of more than six months after the unreasonable behaviour. This rule also applies to desertion, and the discovery that adultery has taken place.
Acknowledgement of Service
Once the divorce petition is received by your spouse (the respondent) he or she has 14 days to return the acknowledgement of service to the court, stating whether he or she agrees to the divorce; intends to defend it; objects to any claim for costs in the petition and, if applicable, agrees with the arrangements for the children.
If the respondent wants to contest the divorce, they have 14 days to file an answer or to file a cross-petition (i.e. if they disagree with any of the statements in the petition). Fewer than 1% of divorces are defended as this can result in long expensive court proceedings with little to gain. If the divorce is based on two years’ separation with consent, the respondent needs to give their agreement. Without this the divorce cannot proceed.
If the acknowledgement of service is returned properly, the next step is for the petitioner to swear an affidavit under oath confirming the facts in the divorce petition have not changed in front of an officer of the court, or a third party solicitor. This will then go to a judge who will check it and, if satisfied, the judge will certify whether he or she is entitled to a divorce and whether the arrangements for the children are satisfactory.
The court will then fix a date for the decree nisi. On that date, the judge will read out in court the names of the couple getting divorced and the grounds. Neither party have to be in court for this and the court will send a copy of the decree and any agreed order for costs to each of the divorced couple or their solicitors. In the absence of agreement the judge will usually order the respondent to pay costs.
Final Stage
The fourth and final stage is obtaining a Decree absolute. The divorce can be stopped at any time until this is granted, so it is advisable to sort out all the financial and practical details first.
If there is a delay of more than twelve months between the decree nisi and decree absolute the court will want an explanation of the reasons for the delay.
The petitioner can then apply to the court for the decree absolute. That can be done after six weeks and one day from the date of the decree nisi.
Once the decree absolute is granted the couple are divorced and are both free to re-marry. A petitioner should not re-marry until financial issues are resolved as this may effect the outcome.
Children Act 1989 (Not included within Q & A Divorce)
Divorce can be especially confusing for children, so it is important to minimize the trauma suffered where possible. If you are having problems sorting out arrangements for your children, such as who they live with (residence) and how often your partner can visit them (contact) then it is a good idea to attend mediation to help you reach sensible and fair decisions before you speak to your family lawyer.
As a last resort, it may be necessary to go to court to apply for residence and contact. If you disagree with how your ex-spouse is bringing up your children then there are other legal options available. You can apply for a court order to stop them pursuing a particular action, or ask the court to decide the best interests of the child regarding a particular issue, such as religious instruction or medical care.
