Ending a marriage is a big decision, and can be an incredibly emotional time for everybody involved. Having decided that it may be time to separate, it is difficult to know what to do, who to talk to, or where to start. The legal process of getting a divorce has many steps and can take months to see through to completion, but with the help of a good family law solicitor it need not be too daunting.
What are the legal grounds for divorce?
By law - according to the Matrimonial Causes Act of 1973 - an application for divorce must be made on the basis that the relationship has ‘irretrievably broken down’.
This must be substantiated by demonstrating at least one of a selection of legally accepted ‘facts’, which at present may include any of the following:
- Adultery
- Two years desertion
- Two years separation (with the consent of both parties)
- Five years separation (with no consent required)
- Unreasonable behaviour (such as abuse, excessive drinking, lack of support, etc)
Once the petitioner (the person applying for the divorce) has decided which of the ‘facts’ listed above is to be the basis of showing that the marriage has broken down, the parties may wish to have detailed discussions about arrangements for children and the division of assets.
At each step of the divorce process, the petitioner’s family law solicitor will be able to guide them through what needs to happen and help them with the application.
No fault divorce
It must be mentioned that an historic shake-up in divorce law is on the horizon.
June 2020 saw royal assent granted to new legislation (the Divorce, Dissolution and Separation Act), and while it is not expected to come into force until at least the latter half of 2021, the new law will for the first time allow for ‘no fault’ divorces.
This is good news for married couples seeking divorce. Under the current law there is one ground for divorce which is irretrievable breakdown of marriage. However, in order to prove that a marriage has irretrievably broken down it is necessary either to claim that the other party is at fault (either on the basis of adultery, unreasonable behaviour or desertion) or to wait for at least two years if the other party will consent and 5 years if they will not.
The Divorce Petition
The official application for a divorce is known as the ‘Petition’, and there is a £550 court fee associated with its submission.
The court will check over the submitted Petition to confirm that everything is in order. Depending on how the application was made (by post or online), it may take a month or more to hear back (there are delays expected at the time of writing due to COVID-19).
After this, the court will contact the respondent (the petitioner's spouse) about the divorce application and send them an Acknowledgement of Service form to which they will need to respond.
The Acknowledgement of Service document asks the spouse to confirm that they agree with the divorce or if they intend to defend it. If the petitioner has claimed costs, it will also ask if the spouse objects to paying them.
In some cases, the petitioner may not know the whereabouts of their spouse, which of course can present a problem when it comes to serving them the divorce papers.
In this situation, they should do everything they can to find an address for the missing partner. If, following this, the spouse is still missing, a separate application can be made to the court asking to remove the requirement for serving divorce papers.
If adultery was used as one of the facts indicating the breakdown of the marriage, and the petitioner names the third party with whom the adultery was committed, the third party will also be sent a copy of the Divorce Petition and asked for a response.
It would usually be Girlings' advice not to name a third party and this can be discussed with your legal adviser.
What happens next in the process depends on whether the spouse wants to defend the divorce. If so, they will have 28 days to respond with an Answer to Divorce form explaining their objections and the case may have to go to court to find a resolution.
If the partner agrees to the divorce - or does not return their Answer to Divorce within the deadline - the process can continue with an application for Decree Nisi.
Decree Nisi and Decree Absolute
Decree Nisi is a provisional approval of the divorce issued by the courts. Nisi is the Latin word for “unless” - and so Decree Nisi means that the divorce can proceed unless sufficient cause can be shown that it should be stopped.
If the court finds that Decree Nisi cannot be issued, they may send out a Notice of Refusal of Judge's Certificate. This will explain the problems found and outline the next steps (perhaps a further submission of information, or attendance at a court hearing).
Once Decree Nisi has been obtained, the applicant must wait for a period of six weeks and one day before they can apply for the final decree (the Decree Absolute). Until this has been obtained, the parties are still legally married.
In some situations, the applicant’s family law solicitor may advise them to wait for the outcome of any financial settlements if appropriate - this will depend on their particular circumstances. They will have up to twelve months to apply for the Decree Absolute, but if they wait longer, they will have to give an explanation for the delay.
If four and a half months have passed since the receipt of the Decree Nisi and the petitioner has not yet applied for the Decree Absolute, the respondent will be able to apply themselves. If this happens, the petitioner is notified and will be able to oppose the application if they wish.
When everything is in order, the application for the Decree Absolute can be sent. The court will look over the application and make sure there are no outstanding issues preventing the divorce from going ahead.
If approved, the Decree Absolute makes the divorce final and the parties are officially no longer married.
Financial matters
It is always important to consider financial matters and after a divorce, if there has not been a financial court order, a divorced spouse can potentially still make a financial claim against their former spouse’s assets including pensions. You must never assume that you will be free of a financial claim from a divorced spouse just because your Decree Absolute is pronounced.
Expert legal advice
Applying for a divorce can seem to be a complex process that comes at a potentially stressful or even traumatic time in one’s life. However, expert legal guidance can support you through this difficult time and help you understand the process and take control.
As a team, we cannot emphasise enough the value of receiving early professional advice when considering divorce or separation. To encourage our clients to seek early advice, we always offer a one hour fixed fee initial interview with an experienced family law specialist at a discount of at least 40%. This fee also includes follow up written advice after the meeting. Our experience has shown that our clients often need much longer than 30 minutes for that first initial advice from a family solicitor so that they can consider their options going forward.
For further advice on separation and divorce, please contact a member of our Family Law team.
Girlings has offices in Ashford, Canterbury and Herne Bay.
