Divorce Questions & Answers
Divorce is a legal process, which is carried out by the civil courts. The procedure begins with a petition and ends with a decree absolute, which dissolves the marriage.
The timescale to complete the process differs from case to case. Separate but related issues arising from divorce that need to be resolved often include practical arrangements for the care of any children and future financial arrangements between the couple concerned. Those issues may in practice take precedence over the actual divorce itself.
- When Can a Divorce Petition be Issued?
- Will my Marriage Certificate be Required?
- On What Ground can a Divorce Petition be Issued?
- Does the Basis of the Divorce Have to be Agreed?
- What Information Does the Divorce Petition Contain?
- What Details are Given About Any Children?
- Will I Need to Attend Court?
- Are The Divorce Proceedings Held in Public?
- When are Financial Issues Dealt With?
- When Will I be Able to Remarry?
You cannot issue a divorce petition unless you have been married for more than one year. Although it does not matter where you were married, it does matter where you and/or your spouse are living at the time the petition is issued. The issue of where you or your spouse normally live or connections you have abroad may have to be considered by the courts, to determine whether a court has authority to deal with a particular divorce (known as 'the court's jurisdiction'). These matters, known as domicile and residence, can be complex.
Yes. Your divorce petition needs to be accompanied by either your original or an official copy of your marriage certificate. A photocopy is not sufficient. If you were married in England or Wales, you can easily obtain an official copy of your marriage certificate from the office of the Registrar of Births, Deaths and Marriages for the district in which you were married. The court does not return your marriage certificate at the conclusion of the divorce. Different formalities apply where you were married abroad.
The only ground for divorce is that the marriage has irretrievably broken down. This is proved by establishing the existence of one of five factual circumstances. These are:-
- Your spouse has committed adultery and you find it intolerable to continue to live with him/her.
- Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.
- Your spouse has deserted you for a continuous period of two years or more.
- You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
- You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.
- It is no longer compulsory in a petition based on adultery to name the third person concerned.
No. However, it might be a good idea for you or your solicitor to establish whether or not there is likely to be any opposition to the petition before it is actually issued at court. As a matter of good practice, a draft of a petition based on behaviour should usually be sent to the other spouse concerned so that an agreement can be reached over the particulars to be cited.
The petition is a standard court form. It contains basic information about the names and addresses of the couple concerned, details of any children and a statement that the marriage has irretrievably broken down. It will also state the basis of the petition, such as adultery or behaviour. The contents of the petition must be true.
The petition concludes with a section known as the 'prayer' which sets out what is actually being sought. It therefore includes a request that the marriage be dissolved and may also include a request for the other spouse to pay some, or all, of the costs of the divorce. In addition, a request is usually made for an order for financial provision to be made by the court (known as 'ancillary relief').
A standard court form accompanies the divorce petition which outlines the current and proposed arrangements for any children of the family under the age of 16 or between 16 and 18 but still in secondary education. This includes details such as where and with whom the children live, which schools they attend, who looks after them and how often they see the other parent. This is known as a 'statement of arrangements'. The law encourages couples to reach an agreement over future arrangements for their children without the need for a court to become involved. As a matter of good practice the statement of arrangements should be sent to the other parent for agreement before the divorce petition is issued.
You will usually only need to attend a hearing dealing with the divorce if the proceedings are contested. You may have to attend court if you or your spouse are unable to agree arrangements for your children or for financial provision.
Court proceedings in family law are usually held in private. The press are able to publish the fact that a decree nisi of divorce has been pronounced. The information that they may disclose is, however, essentially limited to the names of the couple and the basis upon which the divorce was granted but, in the case of adultery or behaviour, not the actual details themselves.
Negotiations in relation to financial arrangements for the future can take place at any time before, during or after the divorce. However, in most cases, we strongly advise our clients to reach a financial settlement at an early stage to prevent the divorce proceedings becoming delayed. The Court can approve a financial settlement on Decree Nisi, which occurs approximately midway through the divorce.
Importantly, it will remain open to your ex-spouse to make financial claims against you, even after you are divorced, if a clean break Order is not lodged at Court. At Linnitts we speciaise in negotiating highly successful financial settlements for our clients. We also specialise in the drafting of Consent Orders. No financial settlement is binding or enforceable unless incorporated into a Consent Order and approved by the Court.
Neither party to the marriage is free to remarry until the final decree of divorce has been made (known as the 'decree absolute').
11.1 Issue of the Petition
The spouse who starts the divorce is known as the 'Petitioner'. The other spouse is known as the 'Respondent'. If a third person is named in a petition based on adultery, that person is known as the 'Co-Respondent'. The divorce starts when the following papers are sent to the court:-
- Divorce petition.
- Statement of arrangements for any children.
- Statement as to advice given on reconciliation.
- Marriage certificate.
- Court fee (unless the Petitioner is exempt from paying such fees).
11.2 What Happens Next?
The court or the Petitioner's solicitor sends by post a copy of the petition and any statement of arrangements to the Respondent, together with a form of acknowledgement for him/her to complete (known as the 'acknowledgement of service'). A copy of the petition (but not any statement of arrangements) is also sent to any Co-Respondent. If the Respondent/Co-Respondent is represented by solicitors, the divorce papers are usually sent directly to them.
11.3 What Must the Respondent do Once He/She Recieves the Divorce Papers?
The Respondent must complete and return to the court the acknowledgement of service within eight days of receipt of the divorce papers. The form asks the Respondent whether he/she:-
- Agrees with the basis of the court's jurisdiction.
- Intends to defend the petition.
- Objects to paying any costs claimed.
- Agrees with the proposed arrangements for any children.
The eight day time period starts on the day after the Respondent receives the divorce papers. Longer time limits apply where the Respondent lives outside England and Wales.
11.4. What Happens if the Respondent Wishes to Defend the Divorce?
The Respondent must file a defence (known as an 'Answer') within 28 days of receipt of the divorce papers (longer time limits apply where the Respondent lives outside England and Wales). The petition then becomes defended and the remaining procedure outlined below no longer applies. However it often still proves possible to reach a compromise over how the divorce is to proceed even when an Answer has been lodged. Defended divorce proceedings rarely result in a fully contested hearing. It will however inevitably take longer to finalise the divorce.
11.5. What Happens Where the Respondent Agrees That the Court Has Jurisdiction and Does Not Wish to Defend the Divorce?
The court will send a copy of the Respondent's acknowledgement of service to the Petitioner's solicitor who then prepares an affidavit (a sworn statement) which confirms that the contents of the petition are true. The affidavit must be sworn by the Petitioner before an independent solicitor or court official. This is then sent to the court with a request for a date for pronouncement of the provisional decree of divorce (known as the 'decree nisi').
11.6. What Happens if No Acknowledgement of Service is Returned to the Court Within the Time Limit?
The Petitioner will need to prove that the Respondent and any named Co-Respondent have received the divorce papers. This may require a duplicate set of the papers being sent to the Respondent by recorded delivery or arranging for someone to deliver the papers to the Respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the Respondent has received the divorce papers, the court may make an order dispensing with the need to effect service.
11.7. How Does the Court Deal With the Petitioner's Application For a Date For Pronouncement of the Decree Nisi?
The judge looks through the papers and decides whether the Petitioner is entitled to a divorce. If so, the judge certifies that a decree nisi should be pronounced. Both the Petitioner and the Respondent (usually through their solicitors) are informed by the court of the date on which the decree nisi will be made. This is usually a couple of weeks after the judge issues his certificate. The couple do not need to attend court for the pronouncement.
11.8. Does the Court Make Any Orders in Relation to the Children?
When the judge looks through the papers before he certifies that a decree nisi should be pronounced, he considers the statement of arrangements for the children which accompanied the divorce petition and whether future arrangements for their care are agreed by the Respondent. If there is no dispute between the parents, the judge will usually certify that he is satisfied with the proposed arrangements and that he does not need to make any formal order.
If the judge is concerned about the proposed arrangements for the children, he may ask for further information to be provided or he may ask the Petitioner and the Respondent to attend an informal appointment to clarify and explore particular areas of concern.
In some cases, the judge can direct that the decree nisi of divorce is not to be made final until he is satisfied with the arrangements made for the children.
11.9. When Can the Petitioner Apply for the Decree Absolute?
Provided that the court is satisfied with the arrangements made for any children (or if not satisfied, where the court has not restricted the decree absolute application), the Petitioner can apply for the decree absolute six weeks and one day after the decree nisi was pronounced. The application is made on a standard court form and is usually processed within a couple of days. You will need to discuss the timing and impact of the application with your solicitor before it is made.
11.10. Can the Respondent Apply for the Decree Absolute?
If the Petitioner does not apply for the decree absolute, the Respondent may make a similar application, but will need to wait a further three months after the date on which the Petitioner could have first applied (ie six weeks and one day plus three months). The application is not granted automatically and usually requires attendance at court.
© Resolution [formerly known as the Solicitors' Family Law Association]