A guide to the divorce process
Your marriage has broken down. You’re already going through an incredibly emotional and difficult time. On top of that you now also need to navigate the divorce process, which can be very intimidating.
It doesn’t need to be, however. Our guide to the divorce process will hopefully alleviate some of your worries to make this process as stress-free as possible.
- Can I start a divorce?
- Do I need a solicitor to get a divorce?
- What is the procedure for divorce?
- Do I need to go to Court?
- Should I get a financial order?
- How can I make my divorce as painless as possible?
- Is there an alternative to divorce?
Can I start a divorce?
If you wish to start a divorce you must first be able to say that the marriage has irretrievably broken down. You can’t simply say that you have irreconcilable differences; you must then prove one of five facts:
- Adultery – Your spouse has had sexual intercourse with a member of the opposite sex.
- Unreasonable behaviour – Your spouse has behaved in such a way that you cannot be reasonably expected to live with them.
- You have been separated for a period of at least two years and your spouse consents to a divorce.
- Desertion for at least two years - Your spouse has left you, without your consent or a justifiable reason, and there have been no periods of reconciliation.
- Five years apart – You have been separated from your spouse for a period of at least five years.
Read more: What are the grounds for divorce in the UK?
Do I need a solicitor to get a divorce?
Whilst you can get a divorce without the need of a solicitor, the risks of not using an expert, and instead choosing a Do It Yourself divorce, can be very high. Any decisions could end up affecting you for the rest of your lifetime, especially in the case of dividing assets.
Lawyers can help both sides reach an agreement without the process turning into a war that rages on. They help take the stress out of an already stressful and emotional situation, making sure that what you agree is fair for both of you and also binding to prevent future claims.
What is the procedure for divorce?
Filing a divorce petition
Firstly, a divorce petition is completed. It cites one of the above facts, confirming further particulars to prove the fact relied on, and provides other information about you and your spouse and any children.
It is best, if possible, to agree the contents of the petition with your spouse so that the divorce can proceed undefended. In fact, defended divorce proceedings are very rare indeed.
The petition (together with a copy) is sent to the Court along with the original, or a certified copy, of the marriage certificate and payment of the court fee (currently £550). It is possible to apply for help with fees if you receive certain benefits or are of limited income.
Once the petition has been issued by the Court, your case will be given a Court number. This must be included on all future documents and correspondence with the Court.
Responding to a divorce petition
The Court will post a copy of the petition to your spouse, along with a Notice of Proceedings and an Acknowledgement of Service Form. Your spouse is asked to complete and return the Acknowledgement of Service Form to the Court. If they fail to do so there are procedures available to enable you to progress the proceedings.
Applying for Decree Nisi
If a completed Acknowledgement of Service Form is returned to the Court, a copy will be posted to you. As long as there is no indication of an intention to defend the proceedings, you may then apply for pronouncement of the Decree Nisi.
The District Judge will consider the contents of the documents before the Court and if he/she decides that you have proved your case, you will receive a certificate confirming the date when Decree Nisi will be pronounced.
Decree Nisi is NOT the final Decree and does not dissolve the marriage. You remain married to your spouse until the final Decree – Decree Absolute - is pronounced.
Applying for Decree Absolute
The person who issued the petition (the petitioner) may apply for Decree Absolute six weeks and one day after the date of the Decree Nisi. If this is not done, the person receiving the petition (the respondent) may apply three months thereafter.
Be aware, it is advisable, if you are not to jeopardise your financial health, to delay applying for Decree Absolute until financial matters have been settled between you and your spouse.
Do I need to go to Court?
You don’t need to go to Court for a judge to make your decisions. In fact, allowing someone else to make decisions that could end up affecting you for the rest of your life is a very risky strategy indeed.
Providing you and your spouse agree, you can try mediation or collaborative law. The two are designed to be alternative methods of resolving issues, allowing you both to work together amicably to reach a joint decision.
Should I get a financial order?
It is usual for those getting divorced to need to sort out how their assets are to be divided. The Courts have wide-reaching powers, which do not depend upon the assets being owned jointly. It should be remembered that assets take many forms and often include pension benefits.
Pensions themselves can be a major asset and often are overlooked in divorce. The division of pensions is complicated and expert advice is needed in order to consider all the options. If no agreement can be reached, the Court can determine who has what.
Once you have reached agreement about the division of your finances it is important to have that agreement made into a clean break order. This is so that you both come out knowing with certainty what the financial impact of the divorce will be.
Unlike other civil proceedings, there is no time limit for making a financial claim in divorce proceedings. You may feel that you and your spouse have no assets and therefore no order is needed. However, it is impossible to know what the future holds, and whether you may acquire assets in the future.
Until there is an order dismissing any future potential claims which either of you may have against the other, potential claims remain open. This is so even many years after Decree Absolute has been pronounced.
How can I make my divorce as painless as possible?
Divorce brings out the worst in people. You’re hurt and you may feel that your spouse is being unreasonable or that you’re not getting what is rightly yours. Instead of focussing on the many negative emotions you might be feeling and acting on those, the best option is to focus on the future to achieve the best outcome for both yourself and any children you may have.
Is there an alternative to divorce?
Yes, Judicial Separation, although this does not legally bring an end to a marriage. Reasons for a party seeking this rather than a divorce include one or both of them having religious beliefs or the parties not having been married for the requisite one year required for a divorce.
We can help you
As divorce can be a complex process, you might find it useful to seek professional legal advice at the start and during the process so that you understand your rights and your entitlement and to ensure that any decisions made are legally binding.
We have specialist Family lawyers to advise on all aspects of relationship breakdown, including divorce, separation and the resolution of financial and children matters. For more information, please contact our Family Law Team who would be happy to advise you.
Are you considering getting a divorce? Download our free guide and find out the six key decisions you need to make.