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Europe > England Wales > Family Law > Divorce > Divorce for married couples

Overview: Family Law, Divorce

Obtaining a divorce

For many people contemplating a divorce the emotional aspects can seem overwhelming, particularly where the separation was initiated by their spouse. What is being considered is a profound change of status and identity which almost certainly gives rise to a raft of painful losses, including the loss of a partner, friend and confidante; and the loss of hopes for what the future might have been. These are significant issues and, for many, it will be important to have support to help address them. The purpose of this note is to give guidance on the purely legal and procedural aspects of obtaining a divorce.

Before even beginning the process, early consideration may need to include:

  1. Whether the process needs to be started very quickly – perhaps to ‘secure’ jurisdiction in a preferred country or court, or simply to secure more control over matters generally.
  2. Whether you will want immediate help from the court regarding financial matters.
  3. Whether a ‘judicial separation’ would be more appropriate (however, seeking some of your spouse’s pension by way of ‘pension sharing’ is only available on divorce).
  4. Whether (and if so how) this might mesh with any religious considerations or requirements if there is a religious divorce needed too.
  5. Careful attention to all the potential implications which might include tax, immigration, inheritance/trusts and pensions.

Some terminology

The person seeking the divorce is the “Petitioner”.

The other party is the “Respondent”.

The ‘Decree Nisi’ is the court formally saying that a divorce can be granted

The ‘Decree Absolute’ is the court’s final decree, formally ending the marriage

The law

  1. It is only possible to obtain a divorce if you have been married for more than one year;
  2. Thereafter, the process is actually fairly straightforward if both parties are reasonably co-operative. It can be a paper exercise with no need to attend court.
  3. There is only one ‘ground’ for divorce, namely that the marriage has broken down irretrievably.
  4. The fact that it has irretrievably broken down has to be evidenced in one of 5 ways. In brief they are:

    a. The husband and wife have been separated for 2 years and they both consent to the divorce;

    b. The Respondent has committed adultery

    c. The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with them. In this case, it is often a question of treading a thin line between saying enough to satisfy the Court that the marriage has broken down but not so much as to upset and antagonise needlessly the party from whom the divorce is being sought.

    The remaining two options are rarely used but, in short, they are:

    d. The husband and wife have been separated for 5 years;

    e. The Respondent has ‘deserted’ the Petitioner for at least 2 years.

  5. There are detailed rules concerning periods of cohabitation after adultery or after separation has commenced.

Defending the proceedings

The person receiving a petition for divorce has the right to defend the proceedings although this is rarely done. The cost of defending a divorce is considerable (tens of thousands of pounds), the chances of success are usually low and the end point would usually be a public hearing where the alleged facts are analysed by barristers in front of a judge and the husband and wife would have to evidence from the witness box. Given defended divorces are unusual, they can attract media attention.

Timing and expense

The Petitioner has the burden of doing most of the work (which means more expense) but has more control over the timing than the Respondent. The Petitioner will have to pay the court and oath fees (currently around £400). Solicitors’ fees would be in addition. However, the Petitioner is entitled to claim from the Respondent a contribution towards their costs. The Respondent’s costs are usually around half of the amount the Petitioner incurs. If there is co-operation and solicitors are instructed on each side, the Decree Absolute could be secured in four to six months. However, there can be sensible reasons to defer finalising the divorce until after financial matters have been resolved. Note that once a petition has been filed, either side can pursue it forward to a final decree (though often, for the reasons discussed below, agreement is reached to hold up the final decree until after final financial arrangements are made.)

The effect of being divorced

The pronouncement of the Decree Absolute (which formally dissolves the marriage) has the following effect:

  1. It enables either party to re‑marry (but take care; additional rules may apply before you may re-marry abroad);
  2. It enables final financial orders to take effect;
  3. It prevents a party from applying for a divorce in a different country (important if the rules about finances would result in a different outcome there).
  4. It may change who receives what if one of the spouses then dies:

    a. where no Will has been written, the surviving former spouse loses any entitlement;
    b. if a Will is in existence which dates from before the Decree Absolute, then the decree cancels:

    i. any gift to the surviving spouse
    ii. any appointment of the surviving spouse as an executor or trustee;

    c. it may affect the appointment of guardians for any children.

  5. It may affect pension entitlements, where there is provision for a widow(er) under the scheme. Many schemes have provision for a surviving spouse – but this disappears at divorce because there can then be no widow/ widower. This is the main reason why the application for the Decree Absolute is often delayed until after financial matters are resolved and alternative financial arrangements are put in place.
  6. There may be other impacts – such as on private health insurances that give automatic cover to spouses (but no cover to former spouses) and occasionally because there are specific work related benefits (e.g. reduced cost travel for spouses). Occasionally there may be impacts on trusts, which make specific provision for spouses but none at all for former spouses.
  7. It may have implications for Capital Gains Tax: in the year of separation, assets can be transferred between spouses without triggering a charge – once there is a divorce, you are no longer spouses and charges may apply.
  8. It may pave the way to an increased state pension: it may be possible to acquire the former spouse’s National Insurance contributions (without detrimentally affecting that former spouse’s entitlement). You should obtain advice from a Financial Adviser about this (and other matters generally when contemplating divorce)

The Process (an example timeline):

week

(Say)

Step

What is involved

1

Obtain marriage certificate

The court must know that there is a marriage and if the original marriage certificate is not available then a replacement must be obtained (note that, generally, the court retains the marriage so you do not get it back). Where the certificate is in a foreign language, an official translation must be provided

2

Petitioner prepares a draft petition …

…and if there are children a "Statement of Arrangements"

The process is started by the divorce petition, confirming standard information and detailing the basis upon which the divorce is being sought.

The court is charged with the duty of ensuring that no arrangements are put in place which are inappropriate for any children. A form sets out basic details - rarely will the court interfere.

3 - 4

Trying to agree the paperwork

In the majority of cases it is sensible to try to agree the form of wording in the petition and, if there are children, the Statement of Information form

5 - 7

Petition (and any Statement of Information form) sent to court to be ‘issued’. The court can take a while to process the paperwork. Once issued, the papers are returned with the court stamp and formal case reference number, ready to be given to the Respondent

8

(say)

Acknowledgement of service filed by the Respondent.

The proceedings cannot advance unless the court is satisfied that the Respondent is aware of the proceedings. Generally this is done by the Respondent filling in a court form, confirming his/her stand in relation to the proceedings (hopefully saying they do not defend the proceedings). If the Respondent does not co-operate, there can be substantial delay and additional costs before matters can proceed.

9 - 10

Petitioner prepares and swears an affidavit in support of the petition

This far, all the court has seen is an allegation that there is a basis for granting a divorce. Before it can proceed, the court must have proof. This proof is provided by the Petitioner swearing in an ‘affidavit’ confirming that what is said in the petition is true and confirming that they still want a divorce.

11

Petitioner applies for the Decree Nisi

If the proceedings are not defended, the court can deal with the request for a divorce on paper alone – there is no need for an oral hearing (‘trial’).

16

Notification of Decree Nisi

The District Judge at the court considers the papers and, if satisfied, certifies that the matter may proceed routinely. S/he gives a date for the pronouncement of the Decree Nisi. If there are children, the Judge will also state whether or not the court needs to get involved with the arrangements (rarely done). If the Petitioner sought an order that the Respondent contribute to his/her costs, the Judge will also say at this stage whether or not the Court intends to make an order. If either party intends to dispute the court’s position on costs and intends to attend at court to make representations, they must give at least 2 days notice to the other.

17

Pronouncement of Decree Nisi

The Decree Nisi is pronounced – a Judge reads out in open court a list of all the divorcing couples’ names. There is no need for anyone to attend the court unless the Respondent is objecting to the court’s stance over costs. By pronouncing the Decree Nisi the court is declaring that the Petitioner is entitled to a divorce.

23+

Application for Decree Absolute

The Petitioner can apply for the Decree Absolute (which finalises the divorce) six weeks after the Decree Nisi. Notice does not have to be given to the Respondent. However, the Petitioner is likely to delay applying if financial matters have not yet been resolved.

24+

Decree Absolute pronounced

The court should pronounce the Decree Absolute promptly (a few days) after receiving the application from the Petitioner. The court sends a formal Decree Absolute to each party. Upon the pronouncement of the Decree Absolute the marriage is formally dissolved. The court retains the marriage certificate.

If the Petitioner does not apply for the Decree Absolute, the Respondent can apply 4½ months after the Decree Nisi but s/he has to give advance notice to the Petitioner. If the Petitioner objects, there would be a court hearing and it is likely that the court would only grant the Decree Absolute if the Petitioner would not prejudicially affected.

Last Update: 2013-Jan-14 Gillian Bishop - Blanchards Law
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Gillian Bishop
Law Firm: Blanchards Law
Address: 36 Hart Street
Henley-on-Thames
Oxfordshire
RG9 2AU
United Kingdom
Telephone: 0845 6586639
Website: www.blanchardslaw.com/