Break Up
You can decide to separate and govern your separation by an agreement, which can include an agreement to divorce following 2 years separation.
If you wish to go for divorce, it will depend upon your particular circumstances. It is often sensible to try to obtain your spouse’s consent to the petition and try to reach agreement over the contents of the petition. For example, if your spouse agrees that the petition should be based on unreasonable behaviour, only a brief outline of the particular behaviour may need to be given. Not saying all that might be said will generally not prejudice you.
What does the petition actually look like?
Every petition follows the same form. It contains the basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the “fact” on which it is intended to rely.
The petition will include a section (known as a “prayer”), which will include a request for the divorce to be granted. It may also include a request or an order-relating to the children; a claim regarding costs of the divorce; and an order for financial provision.
How much does the divorce cost?
This depends on the finances of each party to the divorce. Those who are unemployed or on a low income are likely to be eligible for advice under the Legal aid scheme. This means the state will pay the majority, if not all, of the solicitor’s costs. Those who are ineligible for legal aid should ask his/her own solicitor for an estimate of the likely costs. Solicitors are obliged to provide an estimate of their costs at the beginning of the case.
After one year of marriage
Either spouse may start the divorce. He or she is referred to as the “Petitioner”. The petition and statement of arrangements about the children are completed and then sent to the Court together with the marriage certificate. A fee, currently £150 is payable unless the Petitioner is being advised under the Legal Aid scheme.
Within a few days of sending the petition and statement of arrangements to the other spouse referred to as the “Respondent” the petition is issued. A copy of the petition is also sent to anyone named in the adultery petition. That person may be referred to as the “Co-Respondent”. If the respondent (or Co-respondent) has instructed solicitors, the petition may be sent to them.
From the date the documents are received the Respondent has strict time limits to observe.
a) Within 8 days
He or she should send to the court a form called an “acknowledgment of service” which accompanied the petition. The form asks the respondent whether it is intended to defend the petition, whether any claim for costs is disputed and whether orders affecting the children are sought.
b) Within 29 days of receipt (longer if the documents have to be sent to an address abroad)
Whether or not an acknowledgement has been filed, the respondent must, if he or she intends to defend the petition, file a defence (called an answer). The petition then becomes defended and the procedure outlined below does not apply. Defended divorce proceedings resulting in fully contested hearing are very rare. However, a delay in finalizing the divorce is inevitable.
Within a few days of receiving the acknowledgement of service from the Respondent (and Co-respondent) the Court sends to the petitioner’s solicitor a copy of the form(s) of Acknowledgement of service.
If the Respondent is not defending the petition, the Petitioner can apply for the Decree Nisi to be pronounced.
The Petitioner’s solicitor prepares an Affidavit for the petitioner to swear confirming that the contents of the petition are true. It will also state whether any circumstances (including those relating to the children) have changed since the filing of the petition. The petitioner will swear the Affidavit before a solicitor or Court Official and it will then be sent to the court with the request for a date for the first decree of divorce (“Decree Nisi”) to be pronounced.
If acknowledgements of service are not returned to the court?
Proof that the respondent and any named Co-Respondent have received the petition will have to be obtained before the Petitioner can take the next step. This may involve arranging for someone to deliver the petition to the Respondent and any named Co-Respondent personally or, exceptionally, obtaining a court order that proof does not need to be given that the Respondent and Co-Respondent have received the petition. This is called “dispensing with service”.
On receipt by the Court of the application for a date for pronouncement of the Decree Nisi and Affidavit.
The District Judge looks through the papers and, if they seem in order, gives a certificate for the Decree Nisi. Depending on the Courts diary, the date is likely to be a few weeks after the application is lodged. The couple do not have to attend court.
Court proceedings in family law are usually private. This means that the public and press are not allowed access to the court papers. However, the press are able to publish the fact that a divorce has been pronounced. The information that they may disclose is very limited. They may disclose the “facts” of the divorce but they are not able to publish details of the adultery or unreasonable behaviour.
If the arrangements in relation to the children are settled between their parents:
a) 6 weeks and 1 day after the date of Decree Nisi.
The petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form to court. This step is not automatic. This decree will be processed and may be available as quickly as the same day.
b) 3 months after the petitioner could first have applied for Decree Absolute.
The respondent may apply for the Decree Absolute if the petitioner has not already done so.
