Divorce law
For many couples in England and Wales, obtaining a divorce has never been easier. The concept of establishing that one party is at fault has been consigned to history and instead couples now need to establish that the relationship has "irretrievably broken down".
Couples can apply for divorce or civil partnership dissolution at a county court in England and Wales, once they have been married for at least a year.
First Stage
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
- Unreasonable behaviour
- Separated for two years and both spouses consent to divorce
- 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 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 petition is received by the other spouse (the respondent) he or she has eight 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 relevant, agrees with the arrangements for the children.
If the respondent wants to contest the divorce, they have 28 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.
The respondent can contest a petition based on five years’ separation by arguing that financial matters have to be settled or they will suffer financial disadvantage if the divorce is granted. In that case, the court will have to decide on those matters before the divorce can be finalised.
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 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 husband nor wife 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 and their solicitors. The petitioner can then apply to the court for the decree absolute, which is the final decree of divorce. That can be done after six weeks and one day from the date of the decree nisi.
Final Stage
The 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 require an explanation of the reasons for the delay by way of an affidavit. Once the decree absolute is granted the couple are divorced and are both free to re-marry.
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 (custody/residence) and how often the other spouse can visit them (access/contact) then it is a good idea to attend mediation to help you reach sensible and fair decisions before you speak to a family lawyer.
As a last resort, it may be necessary to go to court to apply for custody/residencce and access/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.
