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The Divorce Process

If you have decided that your marriage is no longer working and it’s time to end your relationship, you’re probably wondering where to turn to next and how to complete the process of divorce with minimal disruption to yourself and any children you may have.

Filing a Divorce Petition

Your first step is to file a divorce petition with the court. In your petition you have to say that the marriage has irretrievably broken down and you have to  explain the reasons why you no longer wish to be married based on one of five facts.

The Facts are:-

  1. Adultery- If your husband or wife has had sexual intercourse with a person of the opposite gender. If you wish to state adultery on your petition you must also show that you did not continue to live together for six months or more after you became aware of the adultery. Less than six months is allowable to enable each party to find new residence.
  2. Unreasonable behaviour– irretrievable breakdown in your relationship due to unacceptable behaviour by your husband or wife. There does not have to be one major incident, there can be a whole host of reasons which taken together amount to unreasonable behaviour. The reasons have to be over and above incompatibility. Examples of unreasonable behaviour include physical or sexual violence, emotional abuse such as name calling, insulting you in front of others to make you feel small or threats to your safety if you don’t comply with demands. Unreasonable behaviour can also include alcoholism and drug addiction so if your partner is habitually drunk or takes drugs that weren’t prescribed by a doctor, you have grounds for a divorce. Refusing to pay bills is another good reason.
  3. Desertion– If your husband or wife has left you without you being aware that they were going to leave you and a continuous period of two years has passed immediately before you issue a divorce petition then you can claim desertion in your petition.
  4. Separation for more than two years– If you separated more than two years ago, this can be considered grounds for divorce provided that your husband or wife agrees in writing to your application.
  5. Separation for more than five years– If you separated more than five years ago you will be able to get a divorce even if your husband or wife doesn’t sign the paperwork.

Upon the court issuing your divorce petition, your husband or wife will receive a copy of the petition and an acknowledgement of service form the court, which they have to complete, indicating whether they agree to the divorce or will be defending it.

Applying for a Decree Nisi

Your second step, upon receiving your husband or wife’s completed acknowledgement of service form indicating that they agree to the divorce, is to apply for a decree nisi, which is the first decree in the divorce proceedings. You will need to fill out an application form. You will also need to fill in a statement that reaffirms your reasons for divorce and confirms that those reasons are true. There are different statement forms depending on the reason that you have stated for the breakdown of the marriage.

If there is no objection from your husband or wife and the Judge grants your request, you will be sent your decree nisi document through the post.

If your husband or wife doesn’t agree with your decision to divorce you will have to apply for a case management hearing. This is a court hearing where a Judge will hear your husband or wife’s objections and your arguments. The Judge will then decide whether or not to grant you the decree nisi.

If the Judge Refuses Your Application

If your husband or wife has contested your application for a decree nisi and a Judge has ruled you can’t divorce, you may be instructed to give further information about your divorce petition in writing or be summoned to appear at a further court hearing to discuss the issue. If you have a solicitor to manage your divorce proceedings, he or she will be able to provide further legal advice and represent you in court to increase your chances of overturning the Judge’s decision and obtaining your divorce. If you have filled out the forms on your own and the Judge has refused your application, it would be wise to seek the advice of a solicitor on how to move forward.

Getting a Decree Absolute

Your final step is to apply for a decree absolute. You can only do this if you have received your decree nisi document and waited at least six weeks from the date that the decree nisi was granted. This six weeks waiting period is put in place to give you the chance to change your mind.

After this six week period is over you can fill in a form called a notice of application for the decree nisi to be made absolute. If you are not the party who filed for the divorce, but you are in agreement with the need to divorce and your husband or wife has failed to complete the process by applying for a decree absolute, you will be able to apply yourself but before doing so you will have to wait an additional three months.

Upon receipt of the application for the decree absolute the court will then double-check your divorce petition, including any statements, to make sure that all the requirements for a divorce have been met. If the court is satisfied that this is the case, the court will issue a decree absolute document stating that your marriage has been dissolved.

If you ever want to re-marry in the future you will need to show your decree absolute to the registrar as proof that you are divorced from your previous partner.

Other Options Instead of Divorce

If you know you are better off apart but you are not sure if divorce is the best option, for example, you may be expecting a child together and want to see how things go, or you might want to avoid the contention and bad feeling that often comes with a divorce or your religion may be opposed to divorce and you want to end your relationship without ending your marital status. If so there are other ways to formally end your partnership.

These include:

Living Apart Without a Divorce – You can simply choose to live apart without getting a divorce, although if you enter into another relationship you will still be legally married to your previous partner and will not be able to remarry.

If you choose this option and you would like to make your separation formal, you can enter into a deed of separation. This deed can set out childcare, contact and residence arrangements for your children, any financial agreements, as well as your intention not to or to divorce in the future, if that is what you both want. If you want to divorce after entering into a deed of separation, you are able to do so.

Judicial Separation – Judicial separation is a process by which you separate formally through the courts but don’t get a divorce. This process is quite unusual as most people prefer the finality of divorce and the freedom to re-marry in the future, should they wish it. However, if your religion forbids divorce or you have strong moral convictions that you should not divorce but you still want your relationship to be over, then judicial separation could be the answer.

The process is similar to divorce and you would still have to show that the relationship has ended for one of the five facts as though you were divorcing. However, you would not have to prove that your relationship had irretrievably broken down and you would not have to apply for a decree nisi or a decree absolute. Instead, there is only one decree document which you have to apply for, this is a decree of Judicial Separation.

Judicial separation legally recognises the fact that you have separated and the revenue and customs and the benefits agency will consider that you are single. You can still divide up your marital assets as you would if you were divorced.

The main difference is you will still be legally married and will not be able to re-marry.

Get a Solicitor

For help navigating the divorce minefield, you should seek legal advice through a solicitor. They can assist you in lots of ways, by:

  • Guiding you through the divorce procedure
  • Applying for forms on your behalf
  • Writing your statements in the most effective terms
  • Representing you if your husband or wife contests the divorce
  • Helping you come to a legally sound arrangement regarding your children

Most people also require assistance to reach a financial settlement alongside the divorce proceedings. Financial settlements are separate from the divorce proceedings and also complicated – there will shortly be a blog post to guide you through this process.

Avenue Solicitors are specialists in all Family law matters. To find out more please call us on 0800 014 8575 or 0203 540 7665. Or if you would prefer to get in touch online, please Make An Online Enquiry  to arrange an initial 15 minute review at no charge and we’ll be in contact soon.

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