Beginning the divorce process inevitably raises a variety of questions: Where to start? What to expect? We answer your questions with the legal lowdown on divorce.
What do I have to do to get a divorce?
The petition has to show one of the five reasons: your spouse’s adultery, their unreasonable behaviour, the fact that you have lived apart for two years before the divorce is started and you both agree to a divorce, that you have lived apart for five years or that your partner has deserted you for two years. You can live apart in the same house under certain conditions. The original marriage certificate or an official copy (not a photocopy) has to be produced. The person who starts the divorce is known as the petitioner, the other party is the respondent. At present petitions are only dealt with by certain courts depending on where in the country you live.
What does my spouse have to do?
The petition is sent out in the post by the court to the respondent. There is a form to be completed and sent back to the court confirming that the divorce will not be contested. If this form is not returned, there will be delay and the papers may need to be handed to your spouse personally in order to prove that they have received them. Once this Acknowledgement of Service form has been returned or the papers have been served personally on your spouse, the court will send you a statement to complete and sign.
Do I have to go to court?
Once your statement is signed it is sent back to the court for the judge to confirm that he/she is satisfied that there are sufficient reasons for a divorce to be granted (it is very unusual for this to be refused). A date will then be sent to you for the decree nisi to be pronounced. You will not need to attend court for this unless your partner has objected to paying any costs of the divorce that you may have claimed. If that happens the case will be transferred to your local family court for that hearing.
Am I now divorced?
No, after the decree nisi there is a period of six weeks before the decree becomes final. If you have not changed your mind, then on the day after the six weeks has run out you can put in an application for the divorce to be made absolute. This is dealt with by the court and usually takes a few days to process. Once this is done you are no longer married.
What about my children?
The court will only become involved if there are issues on which you cannot agree. An application can be made to the court to decide questions such as with whom the children will live or how much time they will spend with each parent. A judge can also decide disputes on, for example, what school a child will attend or whether a parent can move with the children to another part of the country, or, indeed a different country altogether. These proceedings are separate from the divorce proceedings and can be dealt with by the court even if no divorce is commenced.
What about financial arrangements?
You can reach an agreement about the financial arrangements between yourselves, or with the assistance of a mediator or solicitor. Once you reach a settlement then we recommend that it is drawn up into a formal document called a consent order, which is then sealed by the Court. If you cannot agree, the last resort is an application to the Court, which can be made as soon as a Petition is issued. A Judge can make an Order as to how the assets of the marriage are to be divided between you and your spouse. Although the matters which the Judge will take into account are outside the scope of this article the aim is to achieve a fair settlement between you taking into account your needs and the available resources. The court can make orders for monthly spousal support at any point after proceedings are commenced and these can run for a certain length of time or indefinitely. A final decision as to the division of property and other capital is only possible once decree nisi has been pronounced. Parties will need to complete a statement of their finances (Form E) and the process may take up to three court hearings (more if one party does not co-operate).
You’ll want to start divorce proceedings with as much information as possible. Browse our family law pages for more information and advice or contact the team.