These are some of the most frequently asked questions about the divorce process that our Family Law team receive.
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When can you get divorced?
You must have been married for a minimum of 12 months, and permanently resident in England or Wales.
What are the grounds to a divorce?
There is only one ground in which a Petition for divorce can be presented to the Court, namely that the marriage has irretrievably broken down. The Court cannot determine whether the marriage has broken down unless one of the following facts is satisfied:-
- Unreasonable behaviour;
- Two years separation with consent (other party’s is required);
- Five years separation (other party’s consent is not required);
How to prove the facts?
There must have been sexual intercourse between the other party and the third party. Kissing, heavy petting, virtual sex etc. will not satisfy the definition of adultery. It is generally difficult to prove adultery, unless of course it is admitted by the other party. If the other party does indeed admit to the adultery, this then takes away the burden of proof.
You must Petition for divorce within six months of becoming aware of the adultery; failing which, you may be deemed as having forgiven the adultery. Moreover, you must no longer be living together.
The third party is called the co-respondent, but in recent years the Courts have actively discouraged the naming of third parties.
If the other party does not however admit to the adultery, you can use the fact that they are having a relationship with a member of the opposite sex that does not go so far as to say sexual intercourse has taken place. This will in turn enable you to Petition for divorce on the fact of unreasonable behaviour.
You must show that the other party has behaved in such an unreasonable manner that you find it intolerable to live with them, and therefore the marriage has irretrievably broken down.
The Court will require written examples of the other party's unreasonable behaviour, which should consist of their behaviour, when it occurred and how the behaviour made you feel.
Examples of unreasonable behaviour can include; sexual relations with a third party; emotional and physical abuse; threatening behaviour; financial control; not spending enough time and/or socialising together.
A Petition must be submitted with the Court within 6 months of the last incident of unreasonable behaviour. This can also happen after the six months provided one party moves out of the matrimonial home. Delaying the Petition on this fact may mean needing to issue the same based on separation grounds, which can take between two and five years depending on whether your spouse is in agreement or not.
Two years separation with consent
Both you and the other party must consent in writing that you are happy for the divorce to be petitioned under this fact. You are not required to specify the reasons for why you and the other party separated. All you have to simply say is that you have been separated for 2 years or more and that the marriage has irretrievably broken down beyond repair.
Separation does not necessarily mean you must have lived in different homes. You can be separated while living in the same home, provided you and the other party are not together as a couple e.g. sleeping and eating apart.
In instances where you have lived in the same home, you may be required to provide a detailed statement of your living arrangements in order to satisfy the Court that you have been living separately.
In addition, the other party will need to sign the acknowledgement of service form confirming they consent to the divorce and that you have been separated for 2 years. In the event at the other party does do not provide this confirmation; the divorce cannot proceed under this fact.
5 years separation
Unlike two years separation, the other party's consent is not required when relying on this fact, albeit it will speed up the divorce proceedings.
Where the parties have been separated for five years, it is often the case they may not have been in contact throughout that time and, the other party's whereabouts are unknown or they may not want to cooperate. This will not however prevent the divorce being granted based on 5 years separation. Please see below the Procedure section, as to the steps to be followed in such circumstances.
To rely on this fact, the other side must have deserted the marriage without your consent for a continuous period of at least two years. This fact is rarely used, as it is extremely difficult to prove.
Filing the Petition
Once the Petition has been processed by the Court, it will be sent to the Respondent, together with an Acknowledgement of Service form.
Acknowledgement of Service
The Respondent should complete and return the Acknowledgement of Service form indicating whether he/she wants to defend the divorce within 7 days.
If the Respondent does not return the form within the stipulated time, it may eventually be necessary to arrange for another set of the documents to be served on him/her, unless it can be proved in some other way that he/she received the Petition and accompanying documents from the Court.
In the event that this proves necessary, you can either make an application to the Court for the Petition to be served by the Court bailiff or hire a private process server.
If the Court bailiff/process server is unsuccessful with their attempts to serve the papers on the Respondent, then you will need to apply to the Court to dispense with the need for service.
In circumstances where the other side's address is unknown, you will need to prove to the Court that you have tried locating your spouse through a range of different means, e.g. social media, family, friends etc.
The options available where the other side's address is unknown are as follows:
a. Making an application for a Court Order
b. As stated above, to apply to dispense with the need for service.
c. Seek a Court direction for the divorce papers to be served on a close relative or work
colleague of the other side.
Once the Court receives the completed Acknowledgement of Service form it will seal and send a copy to the Petitioner. The Petitioner can then apply for the conditional divorce certificate, the Decree Nisi. This is the point at which the District Judge looks at the Petition and decides whether the Petitioner is entitled to a divorce. In the vast majority of cases the Court simply approves the Petition.
The Court will then set a date for the formal pronouncement of the Decree Nisi. This is unlikely to be less than one month from when the application for the Decree Nisi is sent to the Court and depends mainly on the Court's timetable. Neither party has to attend Court for the hearing. Ordinarily the Judge reads out the names of all couples who are divorcing formally in open Court to pronounce their Decrees Nisi without anyone being in attendance.
The divorce is not final until the Decree is made absolute. The Petitioner can apply for the final order, the Decree Absolute, six weeks and one day after the date of pronouncement of Decree Nisi. The Court should process the application within a week or so, but it can often take longer. The application for the Decree to be made absolute is processed by the Court without a hearing.
If you fail to apply for the Decree to be made absolute, the other side can apply after a further 3 months have passed (four and a half months from the date of Decree Nisi). However, if the Respondent does make the application, they will not be granted the Decree Absolute automatically. A short hearing will be fixed before a District Judge, who will consider whether it is reasonable for the divorce to be finalised.
The application to make the Decree absolute must be made within 12 months following the pronouncement of the Decree Nisi. If the application is not made within the stipulated time, then you will need to apply to the Court for permission to make the Decree absolute out of time. This will often occur in cases where there are financial matters to be dealt with, which can last longer than 12 months to settle.
Do I have to pay a Court fee?
Yes. The current fee is £550. This is a one-off fee, which includes the applications for Decree Nisi and Decree Absolute. You may be exempt from paying the fee if you are on a low income. To be eligible, you must satisfy the following:
1. You have less than £3,000 in savings and investments, and you are under 61.
2. You are in receipt of state benefits e.g., income-based Jobseeker’s Allowance (JSA),
income-related Employment and Support Allowance (ESA), Income Support, Universal
Credit (and you earn less than £6,000 a year), Pension Credit (Guarantee Credit),
Scottish Civil Legal Aid (not Advice and Assistance, or Advice by Way of Representation);
3. You earn less than £1,085 a month before tax if you are single or £1,245 if you have a
partner. You can earn an extra £245 on top of that for each child you have. For example,
if you have a partner and 2 children you have to earn less than £1,735 to be eligible for
help with court fees.
New legislation for no-fault divorce was initially scheduled to be introduced in around March 2020. This has now been suspended following the prorogation of parliament by the government.
Once the legislation does eventually come into force and the new changes are implemented, there will be an option for a joint application and the need for evidence of adultery, unreasonable behaviour, periods of separation and/or desertion will be replaced by a requirement for a statement of irretrievable breakdown.
Does a divorce affect my Will?
Consideration should be given about making a new Will. Whilst you are still married, if you do not have a Will or if your spouse is a beneficiary under your current Will, he/she will inherit on your death unless you take positive steps to change the position by making a new Will.
On the divorce being made final (Decree Absolute), any provision in your Will relating to your former spouse becomes ineffective.