Obtaining a divorce is usually very straightforward. The law states that a divorce can be obtained if the marriage has “irretrievably broken down”. “Irretrievable breakdown” can be established by proving one of 5 facts:
1. One spouse has committed adultery and the other finds it impossible to live with him/her.
2. One spouse has behaved in such a way that the other cannot reasonably be expected to live with him/her. (Loosely called the ‘unreasonable behaviour’ ground. Note that the test is subjective – ie it is what the other spouse finds unreasonable, not what the average person might find unreasonable.)
3. One spouse has deserted the other for a period of at least 2 years
4. The couple have lived apart for a period of at least 2 years and both consent to a divorce being obtained
5. The couple have lived apart for a period of 5 years.
Although the first three grounds imply some degree of fault by one of the spouses (adultery, behaviour or desertion) in practice the UK has a ‘no fault’ system of divorce. While fault may be relied on to obtain the Court’s recognition that the marriage has irretrievably broken down and to get a divorce, no moral judgements are made and the ‘fault’ is irrelevant to any other issues between the couple. Which ground is relied upon has no bearing at all on the financial outcome for the couple, nor to the arrangements for the children. The only exception to this is if the behaviour has been extreme – sustained violence leading to serious injury to the victim spouse. In all but the most extreme cases, the conduct of a spouse is irrelevant to other issues between the spouses.
The procedure is simple:
The person who initiates the divorce proceedings is called the Petitioner. The Petitioner files a petition – a standard form in which the ground for divorce is given. If the ground is unreasonable behaviour, details of the behaviour will need to be stated. The behaviour does not have to be extreme – just some examples to show why the Petitioner finds it impossible to live with his/her spouse. If the couple are on good terms, it is sometimes possible to agree first what the petition will say – to ensure it is just enough to obtain a divorce without including anything inflammatory or extreme. This is called a ‘watered down’ petition.
If there are children, the Petitioner will also file a Statement of Arrangements for the children, setting out the existing arrangements and any changes. This is not a binding document, but is important to show the Court that the arrangements for any children of the family have been considered. Ideally, this should be considered with the other spouse and then both parents can sign the form.
These two documents are filed at court with the marriage certificate and £300.
The court sends the documents to the other spouse, called the Respondent, together with a form called ‘Acknowledgment of Service’. The Respondent has 28 days in which to return it to Court, saying whether or not he/she intends to defend the petition.
Assuming not, the Petitioner will then need to file at Court a short sworn statement, called an affidavit, to confirm that everything in the petition is true and that he/she still wants a divorce.
The papers come before a Judge, usually about 4 – 6 weeks later. The Judge will consider if there are grounds to establish that the marriage has irretrievably broken down and will check that the arrangements for any children have been considered. If so, the Judge will grant a Decree Nisi of divorce. There is no need to attend court.
The Decree Nisi is not a divorce, but instead is the Court’s recognition that the marriage has irretrievably broken down. There is then a mandatory period of 6 weeks before the Petitioner is allowed to apply for the final decree of divorce, called a Decree Absolute.
Once 6 weeks have passed since the grant of the Decree Nisi, the P can apply for the DA. This is done very simply by filing at Court a standard form plus £40.
The Decree Nisi is usually made Absolute 2-3 weeks after filing the application. The couple will be sent the Decree Absolute through the post. That is the final decree of divorce and, as from the date of the Decree Absolute, the marriage is dissolved and they are no longer husband and wife.
If the Petitioner fails to apply for the Decree Nisi to be made Absolute, the Respondent can do so after a further 3 months has passed. If there are financial concerns about making the divorce final, the Petitioner can file a form at Court to stop this happening until such time as the Court has satisfied itself that the Petitioner will not be financially disadvantaged by the Decree Absolute.
Costs
Because the procedure on divorce is so straightforward, the costs of a divorce are usually very small. If the Petitioner has relied on a ‘fault’ ground (ie adultery, behaviour or desertion) he/she can apply for an order that the Respondent pays the costs of the divorce process. That order only applies to the process of obtaining a Decree Absolute and not to any other legal issues, such as discussions about children or about finances. The costs orders would usually cover only a small part of the legal fees if solicitors are also involved regarding children or finance.