Family and Divorce Law Solicitors

You cannot present a Petition for divorce at court until you have been married for one year or more. This does not prevent you from separating sooner and it is possible to try to reach an agreement in relation to any financial and children related matters beforehand.

Whilst it is not compulsory for you to instruct a solicitor in relation to your divorce, it is advisable if there are children and/or financial matters to be resolved. A solicitor cannot act for both of you which means that if you both want legal advice then you will each need to instruct your own independent solicitor.

In order to start divorce proceedings you will be required to complete a Petition for divorce which must be accompanied by either the original marriage certificate or an official certified copy if you do not have the original. You will also be required to pay a court issue fee (currently £550.00 – March 2016).

The court will not accept a photocopy of the marriage certificate. This means that if you do not have the original marriage certificate you will need to obtain an official certified copy. If your marriage took place in England and Wales you can obtain a copy from the General Register Office for births, marriages and deaths. If your marriage took place abroad you will need to make enquiries with the relevant foreign authorities.

No – the court retains your marriage certificate and will provide you with a decree absolute certificate in its place once the divorce has concluded.

In order to obtain a divorce you must satisfy the court that your marriage has broken down irretrievably. This is the one and only ground for a divorce.

Irretrievable breakdown of the marriage is established by proving the existence of one of the following five facts:-

• The other party has committed adultery and you find it intolerable to live with them
• The other party has behaved in such a way that you cannot reasonably be expected to live with them
• The other party has deserted you for a continuous period of least 2 years
• You have been separated for a continuous period of at least 2 years and the other party consents to a divorce
• You have been separated from the other party for a continuous period of at least 5 years

If the other party agrees to a divorce then it is advisable to ensure they will admit the adultery before you present your Petition at court for issuing. This is usually obtained by asking them to sign an admission statement. Adultery is also proved in undefended divorces by the Respondent answering yes to the question ‘Do you admit to the adultery alleged in the petition?’ in the Acknowledgment of Service.

If the other party intends to defend the divorce or does not admit the alleged adultery then the situation will be more complicated in terms of the evidence required to prove adultery. We will discuss this with you if it becomes necessary.

It is not necessary to name the person with whom the other party has committed adultery unless you believe your husband or wife will defend the divorce, in which case the person involved will be joined as a party to the proceedings and will be named as the co-respondent. This will increase your legal costs as the co-respondent must be served with all of the relevant divorce papers and engage in the process as a party to the proceedings.

In addition to proving adultery, you must establish that you find it intolerable to live with the other party. It is for this reason that you cannot present a Petition for divorce based on your own adultery.

Furthermore, you cannot present a Petition on the basis of adultery if you have lived with your husband or wife for a period of 6 months or more after you have found out about the adultery.

It is usually only necessary to provide a concise statement with a maximum of 5 or 6 examples of the other party’s unreasonable behaviour. You should detail a course of conduct or provide specific incidents with dates to satisfy the court that the behaviour of the other party is so unreasonable that you cannot be expected to live with them. It is generally not necessary to provide extreme or aggressive examples and it is usually advisable to provide the other party with a draft copy of the Petition before it is issued at court so that the allegations of unreasonable behaviour can hopefully be agreed in advance thereby reducing conflict. If you and the other party have remained living together in the same household for more than 6 months since the last incident of unreasonable behaviour, then it may not be possible to obtain a divorce on the basis of the other party’s behaviour.

This fact is rarely relied upon and you will need to include, as a minimum, the date of desertion, brief details of the circumstances in which the other party deserted you and confirmation that you have lived separate and apart from one another since that date.

If you have not been separated from the other party for 5 years or more, but have been separated for at least 2 years, and you wish to rely on the fact of your separation in the Petition, then you will need the other party to agree to the divorce. They can provide their consent to a divorce before the Petition is issued at court by way of written confirmation (this is the preferred route) and then by confirming the same when completing the Acknowledgment of Service form which must be signed by the other party (and their solicitor if they have instructed one). You must include the date of your separation and brief details of the circumstances in which you became separated. If you have not been separated for 5 years or more then you will also need to confirm the other party consents to a divorce being granted. Separation usually involves you or the other party leaving the family home on a permanent and continued basis, but it is also possible to be separated whilst living at the same address provided you are not living in the same household. We can discuss this with you if necessary as it will involve consideration of matters such as your mealtime arrangements, household chores and financial arrangements.

During your first appointment we will discuss costs with you. We will provide you with an estimate of the likely costs and details of the current court fees which apply for issuing a Petition. The costs of the divorce will be separate to any costs incurred in connection with financial or children matters which, if they apply, will be charged separately.

The costs will vary depending on whether you are the person filing for divorce (the Petitioner) or whether you are the person responding to them (the Respondent). Costs will also vary depending on whether the divorce proceeds on a straight forward and undefended basis, or whether the other party fails to cooperate or seeks to defend the divorce.

We can offer a range of services to suit all budgets. If you wish to deal with the divorce without legal representation, with a view to reducing costs, we are happy to offer an “unbundled” service, so that, instead of us dealing with the whole divorce from start to finish, we only deal with specific pieces of work, such as checking through a document that you have prepared to ensure it complies with the legal and procedural requirements. In this situation it is generally possible to agree a fixed fee for each separate piece of work as and when that piece of work is requested of us.

Legal Aid is still available for mediation for those persons who are unemployed or on a low income. Mediation can be used to help resolve any financial or children related matters in connection with your divorce or separation. However, unless you have been the victim of domestic violence or there is a threat of child abduction, legal aid is no longer available for any family law proceedings including divorce and even in those limited circumstances when it is available, there are conditions attached.

It is possible to include a claim, within your divorce petition, for the court to order the other party to pay your divorce costs, or a contribution towards them. Such costs will be limited only to the costs you have incurred as the Petitioner in connection with issuing the petition at court, including any court fees and your solicitor’s charges. However, the court will usually only make a costs order if the divorce is based on unreasonable behaviour or adultery, unless the parties have agreed otherwise. It is possible for the parties to agree how any divorce costs will be met, including whether they will be claimed in the petition, whether they will be shared or whether each party will simply be responsible for meeting their own costs. It is not possible to claim in your petition for an order relating to any costs you have incurred in connection with resolving financial or children matters arising from your divorce.

If the divorce is agreed and not defended by the other party, it usually takes between 4-6 months to complete, but the timescale is always dependent on the court timetable and how quickly matters are dealt with by the court and by the other party. If the other party defends the divorce, fails to cooperate or otherwise delays in dealing with things in a timely manner, then the divorce may take longer and the costs may also increase. It is not uncommon for the parties to agree postponement of the Petitioner’s application for decree absolute until such time as their financial matters are resolved, in which case the divorce may take longer.

Once the Petition has been issued by the court, it must be “served” on the other party (the Respondent). This usually takes effect by either the court or the Petitioner’s solicitors sending the Petition and accompanying divorce documents to the Respondent by first class post. If the Respondent is legally represented, it may also be possible to serve the issued divorce papers on the Respondent’s solicitors provided they have confirmed beforehand that they are instructed to accept service on behalf of the Respondent.

Once the Respondent has received the issued divorce papers, they must complete and return to the court, within 7 days after receipt of the divorce papers, a court-generated document known as an Acknowledgment of Service which asks them to confirm they have received the Petition, to indicate whether they intend to defend the divorce and whether any claim for costs is disputed. If the Respondent is being served outside of England and Wales, then the time limit for returning the Acknowledgment of Service is extended. If the Petition is based on adultery or 2 years’ separation with consent, the Respondent is required personally to sign the Acknowledgment of Service. In all other cases the Respondent’s solicitor can sign on their behalf if so instructed.

The procedure after completion of the Acknowledgment of Service varies depending on how the form has been completed as follows:-

1) The Respondent does not wish to defend the divorce and does not dispute the costs claimed and, where applicable, admits the adultery or confirms consent to a divorce based on 2 years’ separation

In this scenario the Petitioner will be entitled to apply to the court for the decree nisi to be pronounced. The application for decree nisi must be accompanied by a statement in a prescribed form. The contents of the supporting statement vary depending on which of the five facts have been relied upon in the Petition. Whilst it is possible for the Petitioner’s solicitor to sign the application for decree nisi, the supporting statement must be personally signed by the Petitioner formally to confirm the truth of the contents of the statement and Petition. For next steps after the court has received the application for decree nisi.

2) The Respondent does not wish to defend the divorce, but objects to paying the costs claimed and, where applicable, admits the adultery or confirms consent to a divorce based on 2 years’ separation

In this scenario the Petitioner must decide whether to continue to pursue their claim for divorce costs when making the application for decree nisi. The Petitioner will be entitled to apply for the decree nisi in the same manner detailed above and will simply need to decide whether to tick the appropriate box in the supporting statement to confirm whether they are asking the court to make a costs order at the decree nisi stage. If the Petitioner ticks the box to confirm they are still seeking a costs order then the court will consider this issue at the same time as pronouncing the decree nisi. Costs orders are usually made, if applied for, in divorce proceedings based on adultery or unreasonable behaviour, but are less likely in cases involving two or more years’ separation.

3) The Respondent wishes to defend the divorce

If the Respondent wishes to defend the divorce then there are certain procedural steps which must be taken. In the first instance, the Respondent must file a formal defence to the divorce (known as an “Answer”) within a prescribed time limit. This will generally attract a court fee. The Petition will then become defended and the court will usually list a short directions hearing followed by a final contested hearing. Defended divorce proceedings are rare and will be explained fully if applicable. However, invariably, there will be an increase in your divorce costs if the Respondent indicates an intention to defend and the process is likely to take longer to reach conclusion.

If the Respondent fails or refuses to complete the Acknowledgement of Service then you will need to prove to the court that they have received the Petition and are choosing to ignore it. In the first instance you may be required to send a further set of the divorce papers to the Respondent by recorded delivery or by arranging for someone to deliver the papers to them personally, such as the court bailiff or a process server. If this fails you may need to consider asking the court to make an order specifying how further alternative or substituted service is to be effected. In exceptional circumstances, where all other service methods have been exhausted, it may be possible to ask the court to dispense with service altogether so that you can proceed to the next stage of the divorce despite the Acknowledgment of Service not having been completed or returned. Your divorce costs are very likely to increase if the Respondent does not cooperate with completion and return of the Acknowledgment of Service. If the petition is based on adultery or 2 years’ separation and consent the absence of an Acknowledgment of Service will make it difficult to proceed with the divorce.

The decree nisi is the first formal stage of the divorce which occurs, in undefended proceedings, after the Petition has been issued and the Acknowledgment of Service form has been completed.

Once the court has received the Petitioner’s application for decree nisi in accordance with p), 1) and 2) above, a District Judge will review the papers and, provided everything is in order, will usually list a date for pronouncement of the decree nisi. The parties and their solicitors, if so instructed, will be notified of the date of the hearing although in practice attendance at the hearing is not necessary unless there is a dispute as to divorce costs.

It is not usually necessary to attend court as the divorce is a paper process. Court attendance will only become necessary if the divorce is defended by your spouse (although defended divorce proceedings are rare) or there is a dispute over costs, or there is a dispute concerning the financial and/or children-related arrangements which you have not been able to resolve without either you or your spouse commencing separate court proceedings. In any event, there are alternative options for resolving financial and/or children disputes which we can discuss with you.

There are a number of different options for resolving the financial and/or children arrangements and normally court proceedings should be considered as a last resort. In cases where a couple cannot agree the arrangements directly, they will need to consider alternative ways of resolving matters amicably including, mediation, collaborative law, arbitration and solicitor negotiation. In any event, with limited exceptions, it is now compulsory to consider mediation as a means of resolving any financial and/or children matters before court proceedings can be commenced.

It is not usually necessary for the financial and/or children arrangements to be agreed before the divorce is finalised. However, it is sometimes advisable to delay finalising the divorce (i.e. obtaining the decree absolute) until the financial arrangements have been settled and properly recorded. This normally occurs by way of the parties signing a document known as a Consent Order which can be submitted to the court for approval and sealing without the need to commence formal court proceedings. Some preliminary financial issues may also need to be resolved before the parties can agree the terms of their overall financial settlement, such as interim financial support (also known as spousal maintenance). If the interim financial arrangements cannot be resolved then a court application to deal solely with this issue may be necessary.

If efforts to resolve all issues by agreement fail then it may be necessary to apply to the court for these issues to be determined by a Judge.

It does not make a difference if you were married in England and Wales, or abroad. Instead, it is fundamental to determine where you and/or your spouse are living at the time the divorce proceedings are commenced and whether the court has jurisdiction to deal with the divorce. This may involve an examination of your domicile and habitual residence which can be complex, particularly if you or your spouse has foreign connections. You should seek specialist legal advice before starting any court proceedings, as this may impact significantly on the divorce, financial and children arrangements.

It is a common misconception that the court, when considering any financial and/or children arrangements on divorce, will look at who started the divorce proceedings and what fact is relied upon in the petition. In fact, the court does not consider this at all as the financial and children arrangements will be considered entirely separately to the divorce. If allegations made in the divorce are relevant to the financial or children arrangements then they can be repeated when dealing with those arrangements but the other party will be permitted to dispute the allegations even though he/she did not contest the divorce itself.

Neither party can remarry until the decree absolute has been obtained. At that point the divorce itself is concluded and the marriage is legally dissolved.

Under the court rules, the Petitioner cannot apply for the decree absolute to finalise the divorce until a period of six weeks and one day has passed from the date of the decree nisi. The application is made on a standard court form and unless the divorce petition was filed on or before 30 June 2013 there will be no court fee payable.

If the application for decree absolute is made more than 12 months after the date of decree nisi then it must be supported by a written statement or letter explaining the delay, stating whether the parties have resumed cohabitation since the decree nisi and stating whether any child has been born to the wife since the decree nisi. If a child has been born it must be stated whether the child is a child of the family.

If the Petitioner delays or fails to apply for the decree absolute, then the Respondent can make the application once a period of three months has passed from the date on which the Petitioner could have first applied (i.e. six weeks and one day, plus three months). A court fee is payable for this application. The Respondent’s application for decree absolute will not be granted automatically and both parties will usually be required to attend court. If the parties’ financial matters have not been resolved, the court might refuse or adjourn the Respondent’s application.

You should speak with your solicitor before making the application for decree absolute as this will have significant legal implications. Your marriage will be dissolved upon the granting of the decree absolute and, in turn, you and your former spouse will then be free to remarry. It is sometimes advisable to delay applying for the decree absolute until the financial arrangements have been resolved and properly recorded. Where these arrangements are agreed this normally occurs by way of the parties signing a document known as a Consent Order which can be submitted to the court for approval and sealing without the need for formal court proceedings. There are certain inheritance, pension and financial rights which the Petitioner may lose on decree absolute and this is why the application may be delayed. Where these arrangements are not agreed and have to be decided by the court the process may take several months.

Even if you or your spouse decide that your marriage has broken down, this does not necessarily mean that either of you wish to start divorce proceedings immediately. If that is the case, there are other ways of formalising your separation without dissolving your marriage.

The most common option is to enter into a Separation Agreement setting out the agreed terms of the financial and children matters arising from your separation. Obviously this is only an option if all arrangements are agreed.

Alternatively, either spouse may issue a petition for Judicial Separation. The legal procedure for a Judicial Separation is very similar to that of a divorce, save for the fact that you do not need to be married for one year before filing a petition for Judicial Separation and you will remain legally married at the end of the process. However, Judicial Separation proceedings are very rare and generally only used when both parties are strongly opposed to a divorce for religious or other reasons. Whilst the court can make some financial orders upon pronouncement of the decree of judicial separation, the full array of financial orders is not available which means that it is not possible to achieve a full financial clean break.

Whether you decide to enter into a Separation Agreement or obtain a Judicial Separation, you will remain legally married. This means your spouse’s entitlement with regards to pension benefits, death in service benefits, policies, wills and estates will remain intact, unless specifically changed. For this reason we strongly recommend that you make a Will or revise any existing Will in light of your separation.