What are the grounds for divorce?
There is only one ground for divorce: that the marriage has irretrievably broken down.
How can I establish that my marriage has broken down?
You have to prove the existence of one of five facts:
- Adultery has been committed and you and your spouse find it intolerable to carry on living together
- Unreasonable behaviour
- Desertion for a period of two years or more
- Living separately for two years or more and your spouse agrees to divorce
- Living separately for five years or more whether or not your spouse consents.
How do I start the divorce process?
You have to have been married for at least one year.
To start the divorce process you file a divorce petition. The divorce petition will contain information about your marriage and your reasons for seeking a divorce. If you start the petition you are known as the “petitioner”, the other spouse the “respondent”.
It is advisable to instruct a solicitor if the divorce involves children or significant sums of money. Bear in mind that a solicitor cannot act for both spouses and you should each obtain your own independent legal advice.
Collaborative law is a highly effective way of resolving family disputes without the need to go to court - Sarah Finnis, Head of the Family Law team is a trained Collaborative Lawyer. Meetings take place with you and your partner and specially trained collaborative lawyers. You work together to resolve issues and reach a solution that works best for you and your family. The process has many benefits; it is often less expensive, quicker and above all avoids going to court.
Is there a fee for filing a divorce petition?
Yes, there is a court fee for filing a divorce petition. At the time of writing, the court fee was £550.00.
It might be possible to obtain help with the court fee if you have a low income, little savings or are on certain benefits. Ask a member of our Family Law team for details.
What happens once I have filed a divorce petition?
Once you have filed the divorce petition, the court will issue the petition. This usually takes about three weeks. The divorce petition will be sent to your spouse. When your spouse receives the divorce petition they will have to acknowledge their receipt of the petition on an “Acknowledgement of Service” form. The Acknowledgment of Service form requests information for the court including whether or not the recipient of the divorce petition contests the divorce.
My spouse hasn't returned the Acknowledgment of Service form
If your spouse does not return the Acknowledgment of Service form, then there are other ways that you can demonstrate that the divorce petition has been properly served on them. The experienced family solicitors at Girlings can advise you in this respect.
How long will the divorce process take?
The timescale for the divorce process varies significantly and depends on the particular circumstances of the separation. It is usual, however, for the process to take six to eight months. This estimate is on the basis of there being no financial or children issues to resolve.
What if there are financial issues to be resolved in the divorce?
The first step is to organise and gather your financial information. Your spouse should do the same and you should then exchange this information – this is called financial disclosure. There is a formal document, “Form E”, which is used to share financial information in court proceedings.
There are a number of ways that you can reach a financial agreement:
- An informal agreement reached directly between you and your partner
- Negotiations between your solicitor and your partner’s solicitor
- Collaborative law
- The Court process.
How do I commence court proceedings in respect of finances?
In most cases it is necessary for the parties to attend a Mediation, Information and Assessment meeting to discuss mediation for divorce with a mediator before making an application to the court.
Court proceedings in relation to finances are started by lodging “Form A” with the court. Once Form A has been lodged the court will list your case for a First Appointment. A First Appointment is a procedural hearing and it is unlikely that matters will be resolved fully at that hearing. At this hearing the judge will consider what further directions need to be made in your case going forward. At the First Appointment the judge may refer the case to a Financial Dispute Resolution (FDR) hearing.
A Financial Dispute Resolution (FDR) hearing gives both parties the opportunity to reach an agreement with some guidance from a judge. If the parties still cannot reach an agreement, then a Final Hearing will be listed. At a Final Hearing the court will hear evidence and then make financial orders.
What will be taken into account when considering financial settlement?
The statutory considerations that the court will take into account :
The resources of the parties such as their earning capacity and other financial resources
The needs of the parties
The standard of living of the family before the breakdown of the marriage
The ages of the parties
The duration of the marriage
Any disability, physical or mental, of either party
The contributions made by either party to the family.
The behaviour and conduct of each of the parties, and
The potential for financial loss.
What financial orders can a Court make in divorce proceedings?
An Interim Maintenance Order – this kind of order requires income to be paid by one party to the other until divorce has been concluded or until a future financial agreement has been reached.
A Maintenance Order – a Maintenance Order requires one party to pay to the other regular income.This will continue after the point of divorce and until the end of the parties’ lives or until another agreed or ordered date.
A Secured Provision Order – under this type of order required payments are secured against an asset to ensure that payments are made.
A Lump Sum Order –a Lump Sum Order requires one party to pay to the other a fixed sum of money.
A Property Adjustment Order – this type of order requires a person to take action in respect of property, for example, transferring a property to the other party or selling property.
The court can also make orders in relation to pensions.
How is child maintenance calculated in a divorce?
Child maintenance can be agreed between the parties.
If child maintenance cannot be agreed between the parents then an application can be made to the Child Maintenance Service (formerly the Child Support Agency).
It may also be possible to seek additional maintenance, over and above the CMS calculation, through the court. In considering additional maintenance the court might take into account, for example, the cost of school fees.
How are pensions dealt with on divorce?
There are three ways in which the Court deals with pensions following divorce:
- Offsetting: the spouse without significant pension provision receives capital from some other source.
- Pension sharing: a pension fund is divided, not necessarily equally, and passed over to the other spouse – this requires a court order.
- Pension attachment: a proportion of the pension once received is paid to the other spouse.
What is a decree nisi?
If the divorce is undisputed, the next step is for the petitioner to make an application for decree nisi. To make this application, the petitioner has to complete the relevant application form as well as a formal statement. A decree nisi does not mean that the marriage has ended; a marriage is only ended on decree absolute. Decree nisi is when the court has accepted the divorce papers; this means that a judge has approved the ground for divorce. Both parties to the divorce will be informed of the date that the decree nisi will be pronounced. This hearing is a formality and it is not usual for either party to attend.
What is a decree absolute?
Once you have a decree nisi, the next step is to apply for the decree absolute. It may be sensible not to apply for the decree absolute straightaway if there are issues still to be resolved such as financial issues. You should think carefully about this, particularly if there are pensions.
When can I apply for decree absolute?
If the petitioner wishes to apply for the decree absolute, they have to wait for at least six weeks and a day from the date of the decree nisi.
If the respondent wishes to apply for the decree absolute, they have to wait a further three months to apply for decree absolute.