Although divorce is a commonplace occurrence these days, few people going into their first divorce have much idea about how the process operates. Here is a brief guide.
The basic requirements for obtaining a divorce in England and Wales are that a couple must have been married for a year, the marriage must be legally recognised under UK law and it must have broken down irretrievably. Irretrievable breakdown must be demonstrated to the court by one of five reasons. The only actual ground for the divorce is that the marriage has irretrievably broken down. The evidence to satisfy the Court that the marriage has irretrievably broken down are:-
- adultery;
- unreasonable behaviour;
- desertion followed by 2 years' separation;
- two years' separation with consent; or
- five years' separation without consent.
It is useful to understand the outline of the process and some of the legal terminology. The party to the marriage who makes the application, or petition, for divorce is known as the petitioner while the other party is called the respondent. The petition for divorce is delivered to, or served on, the respondent. The respondent then has 7 days in which to file an acknowledgment of service indicating that they admit that the petition is true or to defend the divorce – although defended divorces are very unusual. If they are going to defend it, the respondent then has a further 21 days, that is a total of 28 days from the date of service, in which to file their defence which in known as an "Answer". The Respondent agrees to the divorce proceeding by returning an acknowledgment of service to the Court, admitting the adultery or unreasonable behaviour or confirming the period of separation.
Once the acknowledgment of service has been returned, agreeing that the divorce can go ahead, the Petitioner then has to swear an affidavit confirming the content of their petition and providing other information. That then goes to the District Judge who, if he/she is satisfied that the Petitioner is entitled to a Decree of divorce, gives a date on which the Decree Nisi will be pronounced. Six weeks after pronouncement of the Decree Nisi, the Petitioner can apply for the Decree Absolute, which is the final decree of divorce. After pronouncement of the Decree Absolute, either party is then free to remarry. If the Petitioner does not apply for the Decree Absolute, then three months after the date on which the Petitioner could have obtained the Decree Absolute, the Respondent may make an application for it. However, it is normal practice not to apply for the Decree Absolute where there are unresolved issues in respect of children, property or financial matters.
It is beneficial if arrangements concerning any children from the marriage and the split of family assets are agreed without having to go to court. However, it is important to have good legal advice even if these decisions are made amicably. Mediation is an alternative way of reaching an agreement to deal with property and financial matters on breakdown of marriage or if there are problems in sorting out arrangements for the children. Mediation is only possible where both parties agree to it, it is independent of and nothing to do with the Court. If mediation is successful then the parties in divorce would have to have an Order made in the divorce proceedings confirming the agreement reached through mediation. If mediation does not result in an agreement being reached then either party can make an application within the divorce proceedings so that the Court could help them sort out property and financial matters or disputes over children and if agreement could still not be reached with the help of the Court then there would be a hearing and the Court would hear all the evidence and arguments and make its decision.
Where agreement is reached to deal with property and financial matters by way of mediation or negotiation between spouses, through their Solicitors or in any other way it is extremely important that there is a clear written record of that agreement by way of a Consent Order in the divorce proceedings or if such agreement is reached prior to divorce by way of a Deed of Separation. If there are issues relating to children which are agreed then whilst the Courts do not normally make Orders it is obviously important that there is some written record of what is agreed in relation to the children, this is only necessary where there is a dispute where issues fall into place without difficulty then this is not necessary.
In all, the divorce process is likely to take between five and eight months to complete. It will, however, take longer if there are disagreements over children or money which cannot be settled without the intervention of the court.
