Obtaining a Divorce

To obtain a divorce in England and Wales the following steps need to be taken:

Either the husband or the wife can apply for a divorce after 12 months of marriage using an application called a Petition. The Petitioner is the person who makes the application and the other party is called the Respondent.

ISSUING A PETITION

The purpose of the Petition is to ask the court to dissolve the marriage and to inform the court of the reason for the breakdown of the marriage. The court must be persuaded that the marriage has irretrievably broken down.

This is shown in one of five ways:

  1. The Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
  2. The Respondent has behaved unreasonably and the Petitioner cannot reasonably be expected to continue to live with the Respondent.
  3. The Respondent has deserted the Petitioner for a period of 2 years.
  4. The parties have been separated for 2 years and both agree to the divorce.
  5. The parties have been separated for 5 years.

Other information contained in the Petition includes where the parties were married and whether they have any children.

ASSOCIATED DOCUMENTS

As well as the Petition, the following documents must be sent to the court:

  1. The Marriage Certificate (the original or a certified copy).
  2. Copies of the Petition to be served on the Respondent.
  3. A Reconciliation Statement to confirm that the solicitors have discussed this with their client.
  4. The court fee (which is currently £550).

Further copies of the Petition may be required if there is a Co-Respondent mentioned, such as may be the case for a divorce based on adultery with a named person. The court actively discourages the naming of, or involvement of Co-Respondents in the court process.

The Petition must now be issued at specific ‘gateway’ Family Court, or the Central Family Court in London. During the issuing process, the ‘gateway’ Family Court will allocate the case to the Family Court best placed to deal with the divorce.

SERVICE OF THE PETITION ON THE RESPONDENT

The Petition and other documents will then be served on the Respondent. This can be done by the court, the Petitioner’s solicitors or, unusually, a process server. A court file will be opened to keep all the documents at the court. The documents which will be given to the Respondent after the court has approved them are as follows:

  1. The Petition.
  2. An Acknowledgement of Service (see below).
  3. Notice of Proceedings.

These documents can be served on the Respondent personally, or if agreed, on the Respondent’s solicitors. The documents are usually sent through the post.

ACKNOWLEDGEMENT OF SERVICE

Within 7 days of receiving the documents the Respondent should return the Acknowledgement of Service to the court. The Respondent will have an opportunity to indicate at this stage whether he/she intends to defend the divorce and to state whether he or she agrees to pay the Petitioner’s costs of the divorce (if claimed).

DEFENDED DIVORCES

In the unusual case where a divorce is defended, the Respondent is required to provide an Answer to the Petition within 28 days of receiving the petition.

UNDEFENDED DIVORCES

On receipt of the Acknowledgement of Service, the Petitioner’s next step will be to sign and file a Statement in support of the Petition (to confirm the facts within the Petition) and to apply to the court for pronouncement of Decree Nisi. The Judge will consider the documents and if he or she is persuaded that the Petitioner is entitled to a divorce, a Certificate of Entitlement to a Decree will be granted, setting a date for the pronouncement of the Decree Nisi.

DECREE NISI

The pronouncement of the Decree Nisi in open court is the first of the two decrees which are required for a divorce. Neither party has to attend the pronouncement.

DECREE ABSOLUTE

6 weeks and 1 day after the Decree Nisi has been pronounced, the Petitioner is entitled to apply for the Decree Absolute. If this time passes, the Respondent can apply after a further 3 months. However, the court may not grant a Decree Absolute if there is good reason to delay it, for example that the financial issues have not been resolved. The parties are not required to attend court for the pronouncement of the Decree Absolute. Once the court has made the Decree Absolute the parties are no longer married.

COSTS

Usually the Respondent will be ordered to pay the Petitioner’s costs unless the Petitioner has not asked for them in the Petition.

 

Summary of undefended divorce procedure

The Petitioner issues the Petition at court

Within 7 working days the Respondent returns the Acknowledgement of Service

Petitioner signs a Statement in support of their Petition and applies for Decree Nisi

Certificate of Entitlement to a Decree

Decree Nisi

Financial matters resolve

6 weeks and 1 day after Decree Nisi the Petitioner can apply for Decree Absolute.

After a further 3 months the Respondent can apply if the Petitioner has not

Decree Absolute pronounced

 

 

 

The information contained in this article is designed to provide, for guidance purposes only, a general introductory summary of the subject matters covered. It does not purport to be exhaustive nor to provide legal advice nor should be used as a substitute for such advice.

© Stevens & Bolton LLP 2017

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Caroline Gordon-Smith, Nicola Harries

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