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Divorce Procedure

Lena Dunham

“It's interesting how we often can't see the ways in which we are being strong - you can't be aware of what you're doing that's tough and brave at the time that you're doing it because if you knew that it was brave, then you'd be scared.”

When applying for a divorce in England and Wales the process in the vast majority of undefended cases is a process called Special Procedure – this means a Judge will consider the divorce petition on paper and neither you nor your husband or wife will need to attend Court to explain why your marriage has broken down - The process can take as little as four to six months.

There is no “quickie” divorce as such and this usually refers to one which can proceed immediately without a period of waiting for the petition to be issued.

Before applying you will need the original marriage certificate or certified copy, as well as a certified translation if your marriage was abroad and the document is not in English.

When going through the divorce procedure, the reason for the breakdown of the marriage rarely impacts on how the finances are divided (please see the 'Finances in divorce'). The Court will deal with the financial consequences of the end of the marriage separately from the process of obtaining the divorce itself.

Applying for a divorce

Either party to a marriage can apply to the Court for a divorce. The divorce procedure is started by sending to the Court a divorce application known as the Petition. The party making the application is known as the Petitioner, the receiving party is known as the Respondent.  To prepare the divorce petition we will require your marriage certificate, the court fee and details as to the grounds for divorce. 

Where possible, we will try to agree with your spouse which party will initiate the process and the grounds for divorce.  This will then allow the divorce procedure to continue on an undefended basis.

Grounds for divorce and the Five Facts

In the Petition, the Petitioner has to prove that the marriage has irretrievably broken down by evidencing one of five specific statutory facts:

  1. the Respondent's adultery (being proved by the admission of the Respondent)

  2. the Respondent's unreasonable behaviour

  3. the Respondent's desertion for a period of two years (this is an exceptionally rare and difficult fact to prove)

  4. the separation of the parties for a period of two years or more, with agreement by both that there should be a divorce
  5. the separation of the parties for a period of five years or more (in this case, the consent of the Respondent to the divorce is not needed)

The most common facts relied upon are adultery or unreasonable behaviour (the latter being a subjective test so that the behaviour relied upon does not need to be extreme).

 

The Decree Nisi

Once the divorce petition is issued by the court, it is sent to the Respondent who then usually has 14 days to complete return the Acknowledgement of Service to the court. This may be longer if the Respondent does not live in the United Kingdom.

The court will then send a copy of the Acknowledgement to the Petitioner who then completes and files an Application for Decree Nisi and a Statement in support which exhibits the Acknowledgement.

When the papers are received by the court they will be considered by a Judge who if satisfied with the ground for divorce will issue a Certificate of Entitlement for Decree Nisi. This will list a hearing date several weeks later at which the Decree Nisi will be pronounced together with any other divorces in that days list. This hearing can also be used to consider any applications for or objections to any costs orders sought, if not already agreed.

The Decree Nisi is an interim stage in the divorce procedure. It is not the final divorce but a document that says that the court does not see any reason why you cannot divorce.

Applying for Decree Absolute

Usually, the Petitioner will wait before applying for the final decree of divorce, known as the Decree Absolute, until the finances have been agreed and approved by the Court - if the divorce has taken place before the finances are resolved and one of the parties dies then, potentially, benefits to which the other would have been entitled to by virtue of the marriage will be lost (an obvious example is a spouse's pension).

WARNING: International divorce procedure

You may be entitled to begin divorce proceedings in more than one country: if that is the case, we can assist in helping you to decide which is the better jurisdiction for you (and your family) as the divorce process varies widely from country to country, even within Europe, including as to financial outcome, timing and arrangements for your children. Speed can be of the essence in making the decision.

Contact Us 

If you require advice on any of these issues and would like a free, informal and no obligation consultation please contact our team today.

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