Starting with a Divorce Petition and ending with a Decree absolute, divorce is a legal process carried out by the courts.
Sarah Jordan and David Williams are our expert divorce lawyers. To help you understand more, the guide below explains divorce procedure and the relevant law in more detail. We offer a free initial consultation and you can contact us using the online form on the right hand side or please contact Sarah or David on:
Tel: 0845 680 7871
You must be married if you want to get divorced and you prove that to the court by sending your marriage certificate with the divorce petition. You must also have been married for one year before you can divorce. There is one ground for divorce in England and Wales and that is the irretrievable breakdown of your marriage. The Act of Parliament which sets out divorce law is the Matrimonial Causes Act 1973. There are five factual situations that you can rely on to prove the irretrievable breakdown. These facts are what you might often hear described as the grounds for divorce. You will need to prove one of the following:
- Unreasonable Behaviour
- Desertion for Over 2 Years
- Two Years Separation and Consent
- Five Years Separation
The person who asks for a divorce has to send a divorce petition to Court and is therefore called “the Petitioner.” The person who receives the petition and must respond to it is “the Respondent.” When the court receives a petition it will open a file, and so when you send the petition or papers to Court that is referred to as “filing”.
(1) Starting the divorce procedure
To begin the process you must file a divorce petition at Court. If you have children under 16 years of age, or between 16 and 18 and in education or on an apprenticeship, you will also have to complete and file a document which is called “Statement of Arrangements for Children”. This document sets out the living arrangements for the children including where they will live, go to school, their health and arrangements for seeing their other parent. The forms are sent to Court with your marriage certificate, and the Court fee. The Court will issue the petition – this means it will give your case a court number and open the court file.
(2) Service and Acknowledgment
When the Court has issued the petition it will send copies of the divorce petition and Statement of Arrangements for Children to your spouse by first class post, together with a form known as an “Acknowledgement of Service.” The Court will notify you or your solicitor of the date when the papers were posted.
Your spouse must then complete the Acknowledgement of Service Form, sign it, and send it back to the Court. You cannot proceed until he or she has done this unless you can prove he or she has received the papers. If you do not have any evidence, and your spouse will not return the form to the Court you will have to arrange for a process server to hand the papers to him or her personally. That stage can cause delay and extra expense. The rules which govern the procedure do not allow you to personally serve your spouse.
(3) Applying for your Decree Nisi
When your spouse returns the Acknowledgment of service to Court, he or she will state on the form whether or not he or she intends to defend the divorce. Defended divorces are unusual these days, but they do happen. If your spouse decides to defend your petition time limits apply, and he or she must file the defence, which is known as the “Answer” within 29 days from the date of service. If the petition is not to be defended, or no answer is filed within the time limit you can apply for your Decree Nisi. You complete an application form for a decree nisi and sign a Statement in support of divorce. The statement confirms the contents of your petition and that it your spouse’s signature on the Acknowledgement of Service. This procedure enables the Court to deal with the divorce without needing you to attend.
(i) When you send in your application for a decree nisi the petition and Statement of Arrangements for Children are sent to the District Judge. The judge will look through the petition and decide whether you have proved your case for a divorce. If the Judge is satisfied then he or she will grant a Certificate which means that you will be granted a Decree Nisi.
(ii) The District Judge also has to consider theStatement of Arrangements for Children. The District Judge has to be satisfied that there are either no children or, if there are, that arrangements have been made which are satisfactory. If there is a problem then he will give directions, but otherwise the divorce petition will proceed smoothly. In practice unless there is a dispute over the child/children there should be no problem.
The Court will fix a date on which the Decree Nisi will be made by the District Judge. You will not need to attend the Court unless you want to put your case for or against a costs order to the District Judge. If you do want to attend you will need to give the Court notice at least 2 days before the date of the decree nisi.
You can apply for you Decree Absolute six weeks and one day from the date of your Decree Nisi. This is to give you a “cooling off period”. After that time you complete and send to the Court an application for a Decree Nisi to be made Absolute, together with the Court fee.
The average time for a divorce to be obtained is around four to six months. The time depends on co-operation from your spouse in returning the Acknowledgement of Service, and on whether there are any disputes about your children or your finances. It may not always be in your best interests to apply for your Decree Absolute until you have finalised a financial settlement.