For many people, getting divorced can be their first encounter with the legal system and the process can understandably be fairly intimidating.
This blog aims to provide an overview of the current divorce law.
The main Act of Parliament dealing with divorce in England and Wales is the Matrimonial Causes Act 1973.
1. Can I get divorced in England and Wales?
One or both you are habitually resident in England and Wales for a minimum of one year.
If England and Wales is your place of domicile i.e. your usual home but, for example you are working abroad you need only be resident for six months.
You or your Spouse have not started similar proceedings in any other country.
You have been married for a minimum of one year.
Your marriage has irretrievably broken down.
2. What is irretrievable breakdown?
The Court will accept that your marriage has irretrievably broken down if you can establish one of the five following facts:
Your Spouse has committed adultery and you find it intolerable to live with them.
Your Spouse has behaved in such a way that you cannot reasonably be expected to live with them.
Your Spouse has deserted you for a minimum of two years.
You have been separated for at least two years and your Spouse consents to a divorce.
You have been separated for at least five years.
3. How is a Divorce started?
One Spouse files a petition with the County Court.
The person issuing the divorce is the Petitioner. The other party is the Respondent.
In a divorce based upon adultery you do not have to name the third party but if you do he or she is known as the Co-Respondent.
4. What does the Petition contain?
One of the five facts set out above at 2.
What the Petitioner wants to claim financially.
Whether the Petitioner wants to claim costs against the Respondent.
5. Serving and receiving the papers
After a petition is filed the Court send a copy of the papers to the Respondent (and Co-Respondent if named) who have eight days after receipt to return an Acknowledgement of Service to the Court detailing whether they:
- Consent to a divorce
- Intend to defend the divorce
- Object to any claim for costs
- Agree with the arrangements for children
Defended divorces are rare but if the Respondent does intend to defend they have 21 days to file an Answer.
6. What if the acknowledgement of service is not returned to Court?
This will not bring the divorce to a stop. Your solicitor will advise you on how to progress the proceedings depending on the circumstances.
7. Applying for Decree Nisi
Once the acknowledgement of service has been received the Petitioner will be required to sign a statement on oath, an affidavit in support of petition confirming the contents of the petition.
This is filed at the County Court. The Judge will grant a certificate confirming the Petitioner is entitled to a divorce and that the arrangements for the children (if any) are satisfactory.
The Court then fixes a date for pronouncement of Decree Nisi.
8. What happens on pronouncement of Decree Nisi?
The Judge reads out in Court the names of the couples who are to be divorced.
Neither party has to attend Court.
The Court sends the Decree Nisi on to the parties’ solicitors who then pass it on to the client.
9. Finalising the divorce – applying for Decree Absolute
The final order ending the marriage is Decree Absolute.
The Petitioner can apply for this six weeks and one day after pronouncement of Decree Nisi.
The Court will only grant Decree Absolute before then in exceptional circumstances.
If the Petitioner waits more than 12 months before applying for Decree Absolute the Court will require a statement giving reasons for the delay.
The Respondent can apply for Decree Absolute 3 months after the date that the Petitioner could have first applied for Decree Absolute.
In some cases, the Petitioner may be advised to delay applying for Decree Absolute until financial settlement has been reached.
10. What is the effect of Decree Absolute?
The parties are no longer married to each other and are free to remarry.
The former spouses are no longer next of kin. If a Will has been made naming the former spouse as executor or beneficiary the Will becomes invalid in these respects.
We can help
If you require advice in relation to getting divorced, the Family team at Ringrose Law are here to help.
Contact Emma Darley on 01522 561020 or email email@example.com