When a relationship breaks down, divorce or dissolution may be the only solution. We understand this is a major decision and we will provide full advice and support on the practical arrangements that will need to be made, both with your spouse/partner and any children involved.
Here at Rix & Kay, our Family Team has expertise in representing clients throughout the divorce process, however complex or difficult, whether you are initiating or responding to a divorce or dissolution Petition.
Typically the process can take between 5-7 months. In some cases it might take longer, for example, if there are issues to be dealt with concerning children, finances and/or property. This is only an estimate and will very much depend on the circumstances of each case.
Click here to download our simple outline of the progress of an undefended divorce through the Court
Grounds for divorce
There is only one ground for divorce or dissolution in England and Wales being the irretrievable breakdown of the marriage or partnership. Either party to the marriage or partnership can present a petition for divorce/dissolution provided they have been married or in a Civil Partnership for at least one year and the requirements of domicile or habitual residence in England and Wales have been met.
To satisfy the court that the marriage has broken down irretrievably, there must be evidence of one or more of the following:
- Your spouse has committed adultery and you find it intolerable to live with him/her (you cannot petition for a divorce based on your own adultery);
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her (commonly known as “unreasonable behaviour”);
- Either party has deserted the other for a continuous period of at least two years immediately proceeding the presentation of the divorce petition;
- You have lived apart from your spouse for a continuous period of at least two years immediately preceding the presentation of petition and there is consent to a decree being granted;
- You have lived apart from your spouse for a continuous period of at least five years immediately preceding the presentation of the petition.
Four of the above facts are available if you wish to dissolve a Civil Partnership – there is no provision to commence dissolution proceedings on the basis of your partner’s adultery.
The divorce petition
We strongly recommend you obtain your spouse or partner’s agreement to a Petition being presented to the Court and the basis upon which it is to be filed. We will attempt to reach agreement over the form and wording of the Petition and there is often negotiation as to who is the appropriate person to issue the proceedings.
The Court will grant a divorce provided it is satisfied the marriage has irretrievably broken down. It is usual for the Petition to be drafted in such a way to demonstrate to the Court that there is sufficient reason for the marriage or partnership to be dissolved whilst not raising issues that would cause unnecessary conflict.
You should be aware that it is possible for a Judge to refuse to accept that a marriage has irretrievably broken down. It is for this reason that the drafting of the Petition is important.
Acknowledgment of Service
The Petition is sent to the Court to be “issued”. The Court will issue your Petition and send a copy to your spouse/partner, together with a document called an Acknowledgement of Service, which your spouse/partner should complete and return to the Court within a time frame set by the Court. Your spouse/partner is called the ‘Respondent’.
Your spouse/partner completes the Acknowledgment of Service, confirming whether or not they intend to defend the proceedings, and returns their completed form to the Court. This is why we encourage you to agree the contents of the petition before it is filed at Court. Defended proceedings are rare and often very expensive.
In the event the Respondent does not return their Acknowledgment of Service, the Court will not take any action automatically, and you may need to take legal advice as to what steps are available to you.
Decree Nisi/ Conditional Order
The Court will send you the Respondent’s completed Acknowledgment of ServiceYou will then need to complete and sign an application for Decree Nisi/Conditional Order and a document called a ‘Statement in Support’ confirming the contents of your Petition is true.
The District Judge will look through the papers and, if satisfied that everything is in order, will send you a Certificate of Entitlement. This tells you the date and time that your Decree Nisi/Conditional Order will be made, usually 4 weeks later. There is usually no need for anyone to attend Court on the day your Decree Nisi/Conditional Order is being made unless there is an issue regarding who should pay the costs of the divorce/dissolution.
Decree Absolute/ Final Order
Once the Decree Nisi/Conditional Order has been pronounced, you may apply for Decree Absolute/Final Order after waiting a further period of six weeks and one day. Decree Absolute is the document that ends the marriage whilst a Final Order ends a civil partnership. Very rarely would you have to attend Court within divorce or dissolution proceedings.
If the Petitioner does not apply for the Decree Absolute/Final Order then, three months after the date upon which the Petitioner could have applied, the Respondent may themselves make this application.
Decree Absolute/Final Order and financial matters
The Decree Absolute brings the marriage to an end but does not bring an end to the right of either of you to make a claim against the other. However, it can affect your entitlement to certain benefits that you may have by virtue of being married or in a civil partnership, for example any widow’s rights you may have under your spouse/partner’s pension and certain rights in relation to tenancies.
We strongly advise that you take legal advice in relation to financial matters before applying for (or before your spouse/partner can apply for) Decree Absolute or Final Order.
It is very rare that parties have to attend Court within divorce or dissolution proceedings, and usually that would be if a divorce or dissolution is defended, there is an issue on the matter of who pays for the divorce, or the Respondent applies for Decree Absolute/Final Order because the Petitioner has not done so.