In English law there is only one ground for divorce and that is that the marriage has broken down irretrievably. The person who starts the divorce proceedings is known as ‘the Petitioner’ and their spouse is called ‘the Respondent’.
To satisfy the court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:
(a) The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent
(b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
(c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.
(d) The parties have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a decree being granted. This is commonly used as a “no fault” reason.
(e) The parties have lived apart for a continuous period of at least five years immediately before the start of the divorce. No consent is required for this ground, but the finalisation of the divorce may become delayed if satisfactory financial arrangements are not in place.
Most divorces are based on facts (a) ‘adultery’ or (b) ‘behaviour’. ‘Adultery’ is an act of sexual intercourse with another person during the course of your marriage. To be able to rely on this in the divorce the adultery must have happened in the six months before separation or at any time after separation. There is no need to name the person with whom the adultery took place or indeed to involve them in the court proceedings. In the interest of simplicity, cost, and reducing friction, we discourage the naming of a third party as a “co-Respondent” in the divorce proceedings.
The test for ‘behaviour’ is subjective and it does not need to consist of extensive violence, drug or alcohol addiction or other extreme behaviour. A combination of less obvious behaviour can be sufficient. Often issues like working too much (or not working enough), showing too much (or too little) affection, combined with a number of other similar factors are used.
Desertion requires a specific intent to leave and not return.
The following describes the most common procedure for an undefended divorce where there exists a “special procedure” comprising a paper exercise i.e. the case is dealt with and the evidence to be considered is submitted on paper and without the need for a formal hearing. Defended divorces are rare and a different procedure applies to them although all divorces are begun in the same way.
The process of divorce is begun by filing the petition with the court. The petition is a standard form containing information about the parties, where and when they were married, along with details of their children (if any). The petition ends with a number of requests, actually called prayers, asking for the marriage to be dissolved, that the other party pay the costs, and that the court grant “a financial order”. A Financial Order would deal with the parties’ financial claims such as maintenance, property adjustment, pension sharing etc. These claims are always included regardless of the parties’ circumstances.
When the petition is filed with the court, the original marriage certificate is also filed.
Following the filing, copies of the documents are sealed by the court and sent out by post to the other party, the Respondent.
The Respondent then has 7 days from receipt of the papers in which to complete the form of acknowledgement, confirming receipt of the divorce papers. If (s)he does not do so, then it may be necessary to arrange for a further set of papers to be issued so that the Respondent can be personally served by an enquiry agent, process server or the court bailiff.
The acknowledgement of service will say whether the Respondent intends to defend the case and on the assumption that (s)he does not, the court will then send out a copy of the acknowledgement to the Petitioner or his/her solicitors so that they can continue the process as an undefended divorce.
Upon receipt of a copy of the acknowledgement of service, the next step is to prepare a statement in support of the petition and to make a formal request for the judge to consider the evidence. The statement is in standard form and after it has been completed and signed it is then sent to the court. It is at this stage that the judge then gives formal consideration to the papers and the evidence. The judge will decide firstly if he satisfied with the evidence and if satisfied, he will issue his certificate of entitlement to a decree. If he is not satisfied, he may call for further evidence or for more information. The judge will also make a preliminary decision on whether the Petitioner is entitled to an order for costs. With the judge’s certificate of entitlement, the court will set a date for the pronouncement of the decree nisi. It is not necessary to attend court for the pronouncement of the decree, which is an informal hearing in an open court and comprises the judge reading a list of the names of the cases where a decree is being pronounced. Open court means exactly that, anyone can attend if they wish.
Following the pronouncement of the decree nisi, the orders are sent out by post to both parties and/or their solicitors.
If you are the Petitioner, six weeks after the pronouncement of the decree nisi, you can apply for the divorce to be made final with a decree absolute.
If you are the Respondent, you cannot apply for the decree nisi to be made absolute until a further three months have expired from the date the Petitioner could have applied for it to be made absolute i.e. approx 19 weeks after the decree nisi date.
There are usually good reasons why the decree absolute is not applied for immediately, the most common being financial. You may lose out on pension and death benefits once you are divorced. Until the financial claims are settled, you may be advised to delay applying for the decree absolute.
Once the decree absolute is issued, the process is finished; you are divorced, and free to remarry.
It should be remembered, that this is intended only as a guide for information purposes. Every case is different and needs to be approached from the needs and circumstances of the case and the parties. Some courts have delays which can often delay the whole procedure. On average, you should allow for between four and six months to conclude a divorce assuming there are no special factors to be considered.
Fullers Family Law Practice