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The Legal Process
Options for separation and divorce - what to consider; how divorce proceedings are started and what you need to know.
There is only one ground for divorce in English Law, which is that the marriage has irretrievably broken down. However, you must support this with one of five other facts which are:
- Adultery
- Unreasonable behaviour
- Two Years Desertion
- Two years Separation with consent
- Five years Separation
Adultery* The fact that it has taken place must be proved to the Court. Although its not essential, the easiest and cheapest way to do this is to ask your spouse to sign a simple confession Statement; that way you know he will be likely to sign the acknowledgement form to the Petition when it arrives (see step by step section below).
If your spouse later refuses to sign the acknowledgement form you can use the confession statement instead to prove the adultery. If your spouse refuses to sign a confession statement then you could consider producing other evidence of the adultery if you can get any - but it can be difficult and expensive to organise. In these circumstances you may wish to consider petitioning for a divorce on the grounds of your spouses unreasonable behaviour, though it is generally considered less acrimonious to issue an adultery petition. To encourage your spouse to admit the adultery, you can consider agreeing not to name the Co-Respondent, which is generally discouraged anyway as it really only serves to increase the costs and delay the conclusion of the proceedings with no real advantage to either party to the marriage. Another conciliatory gesture would be to refrain from making any claim for costs against the Respondent if they co-operate and admit the adultery.
Unreasonable Behaviour* - This requires you to state 5 or 6 particulars (sentences) on the Petition which cite examples of such behaviour. You need to include these to demonstrate to the Court that you can no longer reasonably be expected to live with your spouse. It doesnt have to be detailed and it is generally considered best practice to include only such matters as are necessary to satisfy the Court.
*Note - If you carry on living together for more than six months after either the last act of unreasonable behaviour or the discovery of the last act of adultery, then you cannot get a divorce based on this. Similarly, a period of separation is discounted if you live together again for a period of six months.
2 Years Desertion - This is rarely used but may be appropriate where your spouse has disappeared. You need to demonstrate to the Court that every effort has been made to trace your spouse though before a Court will grant a divorce on this basis.
2 years separation with consent - It is sensible to ask your spouse to sign a consent statement in this regard. However, your spouse may withdraw consent at any time up to the pronouncement of the Decree Nisi.
5 years separation - You do not need your spouses consent once you have been separated for five years.
Divorce now or later?
First of all, no petition for divorce may be filed with the Court before a year has elapsed from the date of the marriage. However, this time-bar does not prevent a petition being submitted thereafter which relies on events which occurred during that first year.
If you do not wish to issue divorce proceedings at the moment in any event, then you could consider doing so at a later date on the fact of 2 years separation with your spouses consent or 5 years separation thereafter where you do not need your spouses consent.
Leaving the divorce for two or five years does not stop you from sorting out your financial and property matters but it does affect the way in which any settlement agreed is formally documented and thus whether it is binding or not.
Once a financial settlement has been agreed, it is sensible to have this legally formalised by what is known as a clean break Consent Order. This is basically an Order made by the Court, the contents of which have been agreed by consent between you and your spouse.
Unless and until such a clean break Consent Order has been made, even if a financial agreement has been reached between you and your spouse and even if this has been recorded in writing, it will remain open for either of you to change your mind at a later date and apply to the Court for further financial provision.
Most divorcing couples therefore prefer to obtain a clean break Consent Order in order to provide certainty. A Consent Order can only be obtained after Decree Nisi in divorce proceedings however. Therefore, if you are not inclined to pursue divorce proceedings initially, you will not to be able to obtain a clean break Consent Order.
In such circumstances, there is an alternative, which is to record any agreed financial settlement by what is known as a Deed of Separation. The Deed can also make provision for other related matters, such as, for example, one of you issuing proceedings for divorce in two years time with the others consent and that you will both agree to meet, say, half the cost each. In addition, it can also set out the intended residence and contact arrangements for any children.
You can also state within such a Deed that the two of you will agree that a clean break Consent Order, incorporating the terms of any settlement reached now and stated in the Deed, will be drawn up within the future divorce.
It is vital to realise however that whilst a Deed is a formal legal document which provides evidence of the agreement that you and your Husband have reached, it is NOT BINDING and is therefore far less effective than a clean break Consent Order as the Court does have the discretion, upon a later application, to depart from the terms stated within a Deed, if the circumstances justify this. The Court will certainly consider the existence of the Deed but it is not a guaranteed final solution.
Step by step explanation of the divorce procedure through to the final Decree
- Once the Divorce Petition has been sent to the Court for issue, it will be posted by the Court directly to the Respondent unless he or she has nominated solicitors to accept service. The Respondent will then be asked to complete and return an Acknowledgement of Service Form to the Court within 7 working days to confirm, amongst other things, receipt of the petition and whether or not he or she intends to defend the proceedings. If there are children of the marriage, the Petitioner will have filed a form entitled Statement of Arrangements for Children along with the petition. The Respondent will have received a copy of this with the petition and will be asked in the Acknowledgement of Service Form to confirm to the Court whether or not s/he agrees with the arrangements for the children as stated in the form.
- Once the Court receives the Acknowledgement of Service Form back from the Respondent, it will seal it (ie stamp it with the official Court stamp) and send it to the Petitioner or his or her solicitors.
- The Petitioner can then apply to the Court for the Decree Nisi by swearing an Affidavit. At this stage a Judge will consider all of the papers on the divorce file and will decide whether the Petitioner is entitled to a Decree of divorce.
- Provided the Judge is satisfied that all matters are in order then he or she will set a date for pronouncement of the Decree Nisi. The Court will also confirm whether it is satisfied with any arrangements set out for any children or whether any action needs to be taken with regard to the children before the divorce can proceed. If the Respondent has stated that s/he does not agree with the arrangements for the children as stated in the Statement of Arrangements for Children form, then the Judge may decide to list a hearing at the same time as setting a date for the Decree Nisi to be pronounced in order to get the parties to the divorce into Court to try and sort the matter out. If this is still not possible, then separate Children Act proceedings may be necessary see Children Section.
- The Decree Nisi is not the end of the divorce proceedings however but only the penultimate stage. A certificate of Decree Nisi will be supplied to the parties to the divorce once pronounced.
- Six weeks and one day after the pronouncement of the Decree Nisi is the earliest date that the Petitioner can apply for the Decree Nisi to be made Absolute. Once that time has passed then the Petitioner can apply for the Decree Nisi to be made Absolute and, provided there is no reason for the Judge not to do so, he or she will make the Decree Absolute and the divorce will be complete, the marriage formally dissolved. Sometimes the Petitioner will be advised to wait to apply for the Decree Absolute until any the financial issues are fully concluded. The Respondent can apply for the Decree Absolute 3 months after the earliest date that the Petitioner can apply. However, the Court often wonders why the Respondent is applying rather than the Petitioner and may list a hearing to find out. If the reason the Petitioner is not applying is because the financial issues remain to be resolved, then the Court may well agree that the Decree Absolute should wait.
- The whole divorce process usually takes around 5-6 months to complete if matters proceed smoothly, depending on how quickly each party deals with paperwork and how busy the Court is. However, there are sometimes reasons why the divorce may take longer; usually this is because the Petitioner chooses to wait to apply for the Decree Absolute until the financial matters arising from the marriage breakdown have been resolved fully.
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