Getting a Divorce in the UK

Getting a divorce is a legal process initiated by either the husband or wife. There are three legal stages to the divorce. The person who asks for a divorce is called the Petitioner. The person who is being divorced is called the Respondent.

1. A divorce county court must be satisfied that your marriage is over and has ‘broken down’ irretrievably
2. A 'Decree Nisi’ is granted when a judge has reviewed all of the papers and is satisfied that there are proper grounds for a divorce
3. The final stage of a divorce is called ‘the Decree Absolute’ which is granted by the judge ONLY when they are satisfied with all arrangements regarding any children. You can apply for the Decree Absolute six weeks and one day after the Decree Nisi.

When the Decree Absolute is received, you are no longer married and can re-marry.

Mediation

Solicitors and courts will encourage you to reach agreement and may suggest mediation. Reaching a settlement via mediation avoids the need for courts to determine an outcome and impose decisions, instead, both parties are helped to make decisions. Mediation is not for everyone and certainly not where there is any history of intimidation or violence.

Starting Proceedings

Before you can start divorce procedings, you must have been married for one year; one or other of the couple must be domiciled in England and Wales or has been resident in England and Wales during the preceding year. (The Domicile ruling refers to the country of residence and does not apply to the location where the couple were married.)

The first step is to complete a form called a ‘petition for divorce’; and file it at the local divorce county court or to the Principal Registry of the Family Division in London.

Divorce Petitions require information about names and addresses of the parties, the date and location of the marriage, plus the names and ages of all children. Your original marriage certificate is required. You should also declare any previous Court proceedings between the Petitioner and the Respondent either as a consequence of their own relationship problems or matters involving any children.

The Petition should also state the grounds for divorce (referred to as "facts") and give a full explanation of such circumstances. At the end of the Divorce Petition is a section that establishes what the petitioner is asking for. Usually referred to as the "prayer", this section may also include any claims for costs of the divorce as well as claims for financial provision. The Respondent is entitled to respond with their own "counter" claims regarding costs.

There are two court fees of (currently) £300 to issue the divorce petition and £40 for the obtaining of the Decree Absolute which are both paid to the court.

Grounds for Divorce

The following headings allow for all of the reasons why a couple may choose to divorce.

Adultery: That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.

Unreasonable Behaviour: That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

Desertion: That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.

Two-Year Separation With Consent: The Petitioner and the Respondent have lived apart for a two years immediately before the start of the divorce proceedings and both parties agree to divorce. continuous period of at least.

Five-Year Separation: The Petitioner and the Respondent have lived apart for a continuous period of at least five years immediately before the start of the divorce proceedings. No mutual consent to divorce is required.

How is it Done?

Divorce is a 'prescribed procedure' that entails a series of agreements being reached regarding the changes to circumstances of both parties and any children. There is no legal requirement for you to engage a solicitor and you can pursue the matter entirely on your own. However this is not a course of action that should be taken lightly because there is a necessity to be both comfortable and competant in dealing with such issues when counter arguments may be placed in front of you.

How Long Does it Take?

Apart from the timelines already established where separation is involved as an antecedent, the duration will be determined by the attitude of both parties to reach settlement rather than argue. Experience has shown that four months is a reasonable target time but you would be advised not to make any plans (such as re-marrying) based upon such an expectation.

Separation Agreement

Where a couple have agreed that they will divorce (but not yet) and are no longer living together they can enter into a Separation Agreement. This details all of the agreements that the couple have reached regarding children, financial aspects of settlement plus any other matters regarding the impending divorce itself.

Any agreement reached is binding until there is a divorce. In essence, the couple have agreed the terms of their divorce in advance of the event and when the divorce proceedings commence, the court will be asked to confirm all of the arrangements contained within the separation agreement. It is however possible for the terms of a separation agreement to be subsequently challenged and, although not common, the court can overturn such an agreement.

Collaborative Law

Collaborative law is practised by some Family lawyers (including Pellys LLP) as a modern way to bring about a satisfactory conclusion to the financial circumstances (ancillary relief issues) of a relationship ending without recourse to the courts. Both parties must agree in writing to reach a settlement and the matter is then pursued by the respective lawyers supported by appropriate experts. The 'team' thus formed to look after your interests may include finance professionals, child experts, stress coaches etc.

Each member of the chosen team would make their contribution to producing a 'fair agreement'. Settlement of such an agreement would be made at a four way face to face meeting (involving Petitioner plus lawyer and Respondent plus lawyer). The benefit of the Collabaritve process is in greatly reduced financial and emotional costs, however for this process to work, both parties must be prepared to give total disclosure to their team. In the event that no settlement can be reached, new lawyers must be instructed for court proceedings and it will be the court that makes the final decisions regarding financial matters

Unmarried Couples

Despite the tendancy for many couples choosing to live together in the belief that their relationship is in some way protected by the law, in fact there is no legislation to protect them as there is with married couples and the relationship is not recognised as having any legal standing. Until they choose to get married (or enter into a civil partnership), the law still considers them to be separate individuals with no rights or liabilities to each other should their relationship end. Often in these circumstances, if there are children, the person who cares for the children can be financially disadvantaged.

Unless something is established as jointly owned or a joint responsibility such as may be the case with property (joint mortgage or tenancy) or children, in broad terms what is owned by one person remains their property and the other party has no entitlement. The only remedy available is contract law or complicated trust law in relation to property.

It is a good idea for unmarried couples to regulate their relationship by entering into an agreement to set out the arrangements that would occur in the unfortunate event of the relationship breaking down. If they have no agreement and do separate, they may reach an agreed settlement, but frequently this process is fraught with problems and costs.

Gay Rights (Civil Partnerships)

Any so-called gay rights effectively disappeared on 5th December 2005 when civil partnerships came into force. The purpose of this new legislation is to enable same sex couples to obtain legal recognition of their relationship by forming a civil partnership. The legislations creates rights for same sex couples in respect of social security benefits, children, pensions, domestic violence, Wills, intestacy, fatal accident claims and family provision that have not previously existed. Should the partners choose to separate, the correct phrase to describe the termination of the realtionship is 'dissolution', and they have to establish that the relationship has broken down irretrievably by relying upon similar facts as those in respect of a marriage, i.e. behaviour, desertion, two years separation and five years separation (see above). The dissolution order is granted in two stages, a conditional order similar to a Decree Nisi and a Final Order similar to the Decree Absolute.

• Prior to applying for dissolution the civil partnership must be more than one year old
• A form called a ‘Petition’ has to be completed
• If there are children, another form called a ‘statement of arrangements’ is required which details for the court the plans made for the children once the dissolution is final

Common Law Wife

There is no such thing as a common law wife or husband, this tends to be an expression used in the media but in fact there is no legal basis to it. Marriage Acts 1949 - 1986 stated that unless married (or nowadays in a civil partnership) and subsequently divorced, no other type of relationship extends the same level of protection in law. If a couple live together, have children and then seperate, the rights of the child are catered for by other legislation and not any divorce laws.

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