The procedure for obtaining a divorce under the divorce law of England and Wales follows a particular set of steps, with various documents completed and filed at Court.
Please bear in mind that the reason for the breakdown of your marriage rarely impacts upon how the finances are divided. For example, it is a common misconception that adultery makes a difference. The court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself. You do not need to wait to resolve financial arrangements before divorcing, but you should not divorce without first getting advice how it may affect you.
Before you apply for a divorce, you will need either your original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.
The Petition
The divorce procedure is started by sending to the court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent, and either party to the marriage can apply to the court for a divorce.
Where possible, here are McAlister Family Law we will try to agree with your spouse which party will initiate the process and the grounds for divorce. This will then allow the divorce procedure to continue on an undefended basis. When you apply for a divorce in England and Wales, the process, in the vast majority of undefended cases (that is, a case where one of you wants to divorce and the other does not oppose), is called Special Procedure. This means a judge will consider the divorce petition on paper and neither you nor your spouse will need to attend court to explain why your marriage has broken down.
Grounds for divorce
There is only one ground for divorce, namely that the marriage has “irretrievably broken down”. To evidence this, the petitioner (applicant) for the divorce will need to rely upon one of
The Five Facts
In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:
- Adultery
- Unreasonable behaviour
- Desertion (in practice, this is rare, and difficult to prove)
- two years separation with agreement by both that there should be a divorce
- five years separation (the consent of the Respondent is not needed)
The most common facts relied upon are adultery, or unreasonable behaviour.
The Decree Nisi
Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days (possibly longer if the Respondent doesn’t live in the UK) to complete return the Acknowledgement of Service to the court.
The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a supporting Statement.
When the papers are received by the court they will be considered by a judge who, if satisfied with the ground for divorce, will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later, at which the Decree Nisi will be pronounced. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.
Do bear in mind that the Decree Nisi is actually an interim stage in the divorce procedure – it isn’t the final divorce, it is a document that says that the court does not see any reason why you cannot divorce. Once you have your Decree Nisi, you can apply for the
Decree Absolute
Usually, the Petitioner waits until the finances have been agreed and approved by the Court before applying for the final decree of divorce, known as the Decree Absolute. If the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse’s pension).
International divorce procedure
Some people may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision. If you think this might apply to your situation, please do get in touch without delay.
