Divorce Procedures
Advice
Who can start divorce proceedings?
Who starts the divorce proceedings does not matter as long as you have been married for one year and one or both of you live in England or Wales for six months before the proceedings? (Scotland has its own rules for divorce and when or how to start the process). It does not matter where the marriage took place.
The petition
The petition will detail the reasons for your divorce as well as other sections relating to property, finance, and access to children (if relevant).
Children
If children are involved, the court will request a form (known as a "Statement of Arrangements") for completion. It is advised that you settle on the terms of an agreement with the person you are divorcing beforehand. Sadly, children are generally the innocent parties but are used to effectively punish the other side. We politely suggest that the parties consider how the divorce will affect their children and involve them (and respect their opinion) in deciding what arrangements they would think fair.
Money
Dealing with financial settlements should ideally be done at the earliest stages. However, this is not always the case. The decree absolute can be delayed until the financial issues have been settled. For more complex divorces, or when one side is being particularly unreasonable, matters can drag on for years.
After being served with divorce papers
Once the court papers arrive, they will consist of three parts:
- The petition itself;
- An Acknowledgement of service form; and
- A statement of arrangements.
The recipient of the papers is referred to as the "Respondent". For example, if the reason for the divorce is adultery, then the courts will also send the other parties involved the papers. These individuals are known as 'Co-Respondents'. We appreciate that this news can be very emotionally difficult as they may be in shock of the application itself, in short, they may come as a surprise. It is at this point that we would suggest that you protect your entitlement to assets, child access etc by commissioning professional legal advice. We would be delighted to assist you in this matter.
Timescales
Within eight days, the respondent has to confirm to the court that they have received the papers. This should be done via the Acknowledgement of Service form. The form asks the respondent whether they intend to defend the petition, whether any claim for costs is disputed and whether orders affecting the children need to be changed. Within 29 days (this may extend if the papers are sent outside the UK), the respondent will need to accept the situation as offered or file a defence. If no response is received, proof that the respondent has received the petition must then be shown before proceeding with the divorce. Usually, such papers are hand delivered, and a signature is obtained.
Once the court receives the papers from the respondent, they are passed on to the petitioner to consider. If the divorce is not being defended, it is deemed to be settled. The petitioner can then request to the court that a Decree Nisi (first degree of divorce) be pronounced. The judge will set a date for this to take effect. This is generally an administrational duty, and neither party are required to attend court.
What is an "Annulment"
An annulment can be sought when the marriage itself is not legally binding, for instance during the ceremony: -
- One of the parties was still married to someone else;
- One (or maybe both) of them was drunk or under the influence of drugs;
- They were too closely related;
- The bride was pregnant with someone else's child (without the other person knowing);
- The person conducting the ceremony was not properly licensed; or
- The wedding venue did not have permission from the council to be used for the ceremony.
Types of divorce
There are three types of divorce:
- No-fault;
- Uncontested divorce; and
- Defended divorce.
No-fault divorce
The Divorce, Dissolution and Separation Act 2020 is set to incorporate no-fault divorce. As the description infers, it's just when there has been an unreconcilable breakdown of a marriage, and both sides agree it is best to go their separate ways. Here both sides make a statement in agreement and file a petition with the court. It takes at least six months for such a divorce to be granted.
Uncontested divorce
Again, as the name implies, both sides have amicably reached a fair solution before filing the petition. This is especially useful when there are limited funds to pay for professional legal advice.
Defended Divorce
As previously detailed, this is when one side does not accept offered terms, and the matter needs court intervention. This often ends with significantly high legal costs as specialist counsel (barristers) are often involved.