Divorce

Issuing the divorce proceedings
Grounds for Divorce
 

You cannot start the divorce process unless you have been married for at least one year. One of the parties has to issue divorce proceedings based on fault. There is only one ground for divorce that is that a marriage has irretrievably broken down and to prove a breakdown the person who applies for the divorce (known as the Petitioner) must establish one of five facts:

  • Adultery

  • Unreasonable behaviour

  • Desertion

  • 2 years separation with consent

  • 5 years separation without consent

 

Adultery – You must prove that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. If you only suspect adultery or your spouse will not admit to the adultery you may not be able to prove this ground and divorce on the fact of unreasonable behaviour ground should be used instead. This should prevent potential difficulties or the divorce being defended and delays later on. You cannot divorce on the grounds of your own adultery your spouse would have tissue a divorce against you in this case.

 

Adultery can be used as the basis for a divorce petition whether you and your spouse are still living together or have separated. Not more than six months must have elapsed since you became aware of the adultery before the petition is sent to the court, unless the adultery is continuing.

 

Unreasonable behaviour – You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her. The petitioner sets out a number of allegations against the respondent, approximately 5 or 6 particulars depending on the severity of the allegation made.
Under the Family Law Protocol if we prepare the Petition for your once approved by you we will forward to your Spouse or their solicitor to try to agree the same or to allow them time to comment upon them before the petition is issued in court.

 

Desertion – If one Spouse deserts the other for a continuous period of two years. This fact is rarely used.

 

2 years separation with consent – You or your spouse can issue divorce proceedings if you have been separated for at least two years and the other party agrees to the divorce.

 

5 years separation without consent – If you and your spouse have been living apart for at least five years then either of you may issue divorce proceedings without the other party’s consent.

You will need to apply to the courts for a divorce. A ‘Divorce Petition’ will need to be filled in, Court Support and Legal Services can do this for you.

 

Divorce procedure

 

Once you have decided which fact to rely on, the divorce petition is prepared and checked and signed. In the case of adultery, or 2 years consent, your spouse will be requested prior to issuing to provide their admission/consent. In the case of unreasonable behaviour, the petition will be sent to your spouse to try reach agreement on the particulars.

 

You will need to provide your original marriage certificate or a certified copy of the same. The petition will then be issued in court with a fee payable of £550 (at present). In some cases, you may be eligible to apply to the court for a fee remission.

 

Once the court has processed the petition they will issue the petition by posting to your Spouse. Once served your spouse (if not defending) will complete the acknowledgment of service and send back to the court.

Apply for a 'Decree Nisi' 

 

The signing of the acknowledgement allows you to apply for the first stage of the divorce known as Decree Nisi. This is the stage at which the court will check that you have met all the legal requirements for a divorce.

 

Get a 'Decree Absolute' 

 

If Decree Nisi is granted 6 weeks and 1 day later, you can apply for the divorce to be made Absolute and the marriage will be dissolved. The process usually takes 4-6 months depending on court time. However, if financial matters have not been concluded you may be advised not to apply for the Decree absolute until they have been settled.

The information on this page is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more details or information about the matters referred to on these web page please seek independent formal legal advice. This information was correct at the time of going to press in September 2020.

 

The law in this area is subject to change, we cannot be held responsible if changes to the law outdated this publication. Links provided on our website are for your convenience. It does not imply reliability or endorsement by us, and we accept no liability in respect of the content.