FAQ relating Divorce and Separation
Information about the divorce process and other options that are available to you when you are considering separation. It may be possible for you to save legal costs and handle your own divorce.
How long will the divorce take?
For an undefended divorce, the time from the issue of the petition until the Decree Absolute (the final decree) is usually between 4 ½ ‐ 6 months. It depends to a large extent on the court issuing the proceedings. It is likely to take longer than this if the financial aspects need to be resolved by the court.
Where do I issue proceedings?
A petition can be presented to the Principal Registry of the Family Division or to any divorce county court. You must have been married for more than 12 months.
What do I base the petition on?
There is only one ground for the dissolution of the marriage, i.e. that the marriage has broken down irretrievably and to show that you must prove one of five facts. If satisfied on the facts the court will grant in the first instance a Decree Nisi which cannot be made absolute for six weeks and one day. The five facts are:
a) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
b) unreasonable behaviour on the part of the respondent;
c) desertion (for a period of over 2 years);
d) that the parties have lived apart for a period in excess of two years and the respondent consents to the divorce and
e) the parties have lived apart in excess of 5 years.
The two immediate grounds a) and b) are the most common. With an adultery petition, it is no longer necessary to name the co‐respondent and it is, in fact, encouraged that you do not. With an unreasonable behaviour petition, the particulars will usually run to 3 or 4 paragraphs and should set out the first incident, the worst and the last. At the end of the petition is a prayer for the relief sought. This usually includes the petitioner’s claims for financial relief and, it is necessary for all the claims to be included in here even though it is unlikely that they will be pursued.
Does it matter which of us issues the proceedings?
The person who issues the proceedings (the petitioner) will have control of the process. The other person (the respondent) has a limited role to play. It does not usually matter who issues the proceedings and it may be possible for you to agree between yourselves how you will share the court costs.
What is the process?
The petition is sent to the court with a form setting out the arrangements for the children. Sometimes this form is agreed between you before proceedings are issued. The arrangements are not binding on you and, if there is any dispute between you, not resolved in mediation, it is open to either of you to make an application under section 8 of the Children Act 1989 for orders for residence, contact, prohibited steps or specific issue orders.
Once the divorce petition, the statement of arrangements for the children, the original marriage certificate, the fee and the correct number of copies have been sent to the court the petitioner receives a note of the court number and the documents are served on the respondent by post. The respondent receives an acknowledgement of service form which he/she needs to complete and return to the court.
The court will forward a copy of the acknowledgement of service form to the petitioner once it is received and the petitioner will then complete a standard form affidavit in support of the petition. This, once sworn, is lodged together with a form requesting directions for trial. The papers at this stage are placed before a District Judge who will certify whether or not the decree can be granted. If it can, then the court will list a date for the pronouncement of the decree nisi and inform you of the date. It is not necessary for any attendance on the date of the decree nisi and a few days after a copy of the decree will be sent to you. Six weeks and one day after the decree nisi the petitioner can apply for the decree to be made absolute. This is done by way of form with the appropriate court fee. It is an administrative act and is usually sent back by the court within days of the application.
How does our financial agreement fit in with the divorce process?
The financial matters tie in with the divorce. If you want your proposals to be incorporated in a consent order for the court the divorce must have reached the decree nisi stage. The court only has jurisdiction to make financial orders on or after decree nisi and they are usually brought into effect on decree absolute. With a pension sharing order it is necessary for there to be a decree absolute.
Do we need to divorce at this stage?
There are other options. You may come across a decree of judicial separation. This can be obtained on the proof of the same five facts as divorce but the decree of judicial separation does not end the marriage – it just states that you can live separate and apart from each other. It is sometimes used for religious reasons or where someone does not want a divorce yet they want access to the financial relief claims available.
The marriage could also be annulled. Nullity petitions bring an end to the marriage and the marriage can be treated as void or voidable. Financial relief is also open to the parties to nullity petitions.
If you do not intend to issue proceedings at this stage then it is possible to incorporate your proposals into a Deed of Separation. As long as there has been full disclosure and you have received legal advice it is likely that any agreement you record will be upheld by the court at the time when the divorce goes through. If you are not married then your proposals can also be incorporated into a Deed of Separation.
What happens if we are in a civil partnership?
If you are seeking to dissolve a civil partnership the process is the same as for divorce but there are a few differences. The proceedings are started by an application not a petition. There is the conditional and final order as opposed to the decree nisi and decree absolute. The ground is the same – the irretrievable breakdown of the partnership but only four facts can be relied upon
– b) – e) above (not adultery).
Where can I get further help?
There are a number of websites that can help you with the process. It may be worth entering “divorce process“ in the search engine of your computer. However, some of these sites do charge even just for the forms. It is possible to obtain the forms from the court office for free, and someone in the court office will sometimes check that the contents of the documents are accurate for you before the proceedings are issued.