Obtaining a divorce

Obtaining a divorce

HYBRID MEDIATION ON SEPARATION AND 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.

This note is prepared on the assumption that the divorce will be processed on paper. It is however now possible to conduct a divorce electronically – please see our separate briefing note on this.

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:

  • The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
  • The respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live with the respondent.
  • The respondent has deserted the petitioner for a period of two years.
  • The parties have been separated for two years and both agree to the divorce.
  • The parties have been separated for five years.

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 if sending by post.
  3. A reconciliation statement to confirm whether a solicitor has discussed reconciliation 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. This 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 a specific divorce centre within a regional hub, or the Central Family Court in London. When issued the divorce will be given a unique case number.

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. 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 seven 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 is in open court and is the first of the two decrees which are required for there to be a divorce. Neither party has to attend the pronouncement unless there is a dispute about costs.

Decree Absolute

A minimum of six weeks and one day after the decree nisi has been pronounced, the petitioner is entitled to apply for the decree absolute. If this time passes without application, the respondent can apply after a further three months. However, the court may not grant a decree absolute if there is good reason to delay it, for example if financial matters 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.

It is usual where financial matters are being considered to delay the application for decree absolute until such issues are resolved.

Costs

When making the application for the divorce the petitioner can make a claim that the respondent should pay some or all of their costs, including the court fee. The respondent can either agree to this or ask the court to make a decision. Where contested the most likely outcome is that the court will share the costs between the parties.

Summary of undefended divorce procedure

  • The petitioner issues the petition at court
  • Within seven 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 resolved
  • Six weeks and one day after decree nisi the petitioner can apply for decree absolute
  • After a further three months the respondent can apply if the petitioner has not
  • Decree absolute pronounced

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