Remember: Marriage creates legal responsibilities between a couple.
Divorce is a legal process which unpicks the couple’s relationship.
There are traps which one or both of the couple could fall into which could impact significantly on their lives. We would always recommend obtaining specialist independent legal advice.
Grounds for Divorce
Irretrievable breakdown is the only Ground for getting divorced.
One person has to prove that the marriage has broken down beyond repair. In other words that it has suffered an ‘irretrievable breakdown’.
The person asking for the Divorce (the Petitioner) has to prove that the marriage has irretrievably broken down by proving for the Court that one of five “facts” (reasons) is met;
- The other person (the Respondent) has committed adultery; or
- The Respondents behaviour is such that the Petitioner cannot reasonably be expected to live with them; or
- The Respondent deserted (left) the Petitioner at least two years ago without good reason; or
- The Petitioner and the Respondent have been separated for two years and they agree to the divorce; or
- The Petitioner and the Respondent have been separated for five years or more. (Consent not needed).
Which fact is most suitable/appropriate will vary from case to case.
Generally it is better to agree in advance; who will Divorce who and which of the five “facts” will be used, and the wording of any “unreasonable behaviour”. This does not need to be the worst behaviour; rather sufficient to show that the test is met.
It is now rare for a Co-Respondent to be named. Indeed naming a Co-Respondent means they have to be sent the Divorce papers and it needs to be proved that they have received them. This can slow the Divorce down and cause extra expense.
Most Divorces are Unreasonable behaviour (with agreed wording), Adultery (with the Co-Respondent un-named) or two years separation with consent.
The process of getting a divorce is a usually a straightforward process. What is generally much less straightforward is sorting out the practical issues associated with a divorce, such as where each person will live, who gets what, and arrangements for any children.
Initial letter to the respondent
If you are applying for the divorce, we will usually start the process by writing a letter to the other person to tell them that you are planning to apply for a divorce.
We will try to be constructive. We do not want to do anything which will raise tensions. We like clients to approve this letter as a draft before it is sent. This letter will also recommend that your husband or wife gets independent legal advice if they have not done so already.
Drafting the Divorce Petition
If you have instructed us to prepare a Divorce Petition, then once we have your Marriage Certificate and sufficient information about the basis of the divorce, then we will prepare a draft for your approval.
We will need to decide which will be the best Fact of Divorce.
Once you have the draft Petition, you need let us know if you would like me to make any amendments.
When drafting Divorce Petitions for Unreasonable Behaviour, we will generally only include sufficient allegations so the Court is satisfied that Unreasonable Behaviour exists.
We will avoid including reference to the couple’s children. There is no need to include contentious allegations, or the very worst things that have happened. The reason is that if the content of the Petition is controversial, it will only serve to heighten the “dispute” between the couple and may make it harder to sort out the arrangements for children and finances.
If relevant bad things have happened, then those will need to be explored in any proceedings or negotiation about children or money. Usually the content of the Divorce Petition is irrelevant to deciding other issues.
If Adultery has taken place, it is generally an easier basis for the Divorce than Unreasonable Behaviour.
The Blame game
Divorce Law is in serious need of change. The blame game is in itself irrelevant to the important issues of children and finance. (If there are relevant issues of behaviour to children and finance cases, those will be considered in the context of those cases).
We support calls for law reform and the introduction of no fault divorce.
The Supreme Court considered the law around divorce and unreasonable behaviour in 2018 in the case of Owens and Owens. The lesson from this for practitioners is the need to be super careful about wording unreasonable behaviour and agreeing wordings in advance.
Statement of Arrangements
When the Divorce Petition is sent to the Court it needs to be accompanied by a document called the “Statement of Arrangements”. This form shows the Court that the needs of your children have been considered. The form is prepared by the Divorce Petitioner. Ideally the content of the form is agreed before it is sent to the Court. The Respondent is able to comment on it later if it is not agreed in advance.
If you are going to be the Petitioner, we will send you a copy of the Statement of Arrangements Form to complete. We will then finalise the content with you.
Once the Divorce Petition and Statement of Arrangements have been finalised by the Petitioner and their Solicitor, the draft forms should be sent to the Respondent through their solicitors. This is standard and good practice and gives the Respondent an opportunity to comment on any points on which they have strong feelings. Normally they are given a week to get back to the Petitioner with any comments.
After this the Petition and Statement of arrangements are either amended and/or agreed, or if the amendments asked for are unreasonable they are simply sent to the Court.
Once the Divorce Petition and Statement of Arrangements have been filed at Court (issued), the Court will send them to the Respondent with a form to fill in called the Acknowledgment of Service.
Acknowledgment of Service
In the Acknowledgment of Service form, the Respondent will be asked to say whether they agree to pay the costs of the divorce. It is fairly normal when issuing a Petition to ask for the Respondent to pay the costs. These are around £1200 + VAT.
It is not uncommon for the Respondent to be offended by this, as they may feel that they are not to blame or as least as to blame as the Petitioner. Often it is easier for the Divorce costs to be shared or for each to pay their own costs. The sums involved in the Divorce costs are comparatively small, and you can end up spending as much in costs arguing about them.
Arguing about costs can be an expensive distraction.
Once the Respondent has returned their Acknowledgment of Service, there is another document for the Petitioner to fill out – an Affidavit – which is effectively an application for Decree Nisi.
Decree Nisi is the interim stage of divorce. You are not formally divorced until you get Decree Absolute, which you have to apply for separately.
The divorce process is a separate procedure to the making of financial arrangements. However, Decree Nisi is useful because it means that any financial agreement you reach with the other spouse can be approved by the Court at that stage.
Until we have Decree Nisi we cannot get the Court to approve any financial agreement you reach.
Once we have Decree Nisi it is then a clear 6 weeks before the Petitioner can apply for Decree Absolute. If they do not apply at that time, then the Respondent can do so after a further three months have passed, but they would need the Court’s permission.
When the Petitioner first writes to the Respondent with the draft Petition it is normal to ask them to promise not to apply for Decree Nisi to be made Absolute before the financial arrangements have been agreed. This is because once you get to Decree Absolute, you are finally divorced. However, there are some benefits of remaining married until the financial agreement has been finalised: for example, benefits under a pension if the other should die in the interim.
It is normal practice to agree not to apply for Decree Nisi to be made Absolute until financial arrangements are finalised.
The whole process will probably take a few months in total, providing there are no unexpected difficulties.