A Guide to Divorce

How long do you have to be married in order to apply for a divorce?

You cannot start a divorce until you have been married for at least 12 months and you will have to show that the marriage has broken down irretrievably and cannot be reconciled through mediation or other means.

How do I show the marriage has broken down irretrievably?

The law states you must evidence one of the following facts:

1. Your partner has had a sexual affair with someone else of the opposite sex and you find it too difficult to carry on living with him or her.  If you co-habit for a period in excess of 6 months following the discovery of the affair you may not be able to rely on this ground.

2. Your partner has behaved in such a way that you cannot reasonably be expected to carry on living together ("unreasonable behaviour").  Each example of unreasonable behaviour is treated on a case by case basis and there is large degree of subjectivity.

3. You and your partner have been separated for at least 2 years and your partner agrees that you should both divorce.  Any periods of cohabitation may extend this time frame or possibly even entirely ‘reset the clock’.

4. You and your partner have been separated for at least 5 years.  Your partner does not have to agree to the divorce and there are only very slim grounds to contend this application.

5. Your partner has deserted you and such a situation has been on going for at least 2 years before you start the divorce proceedings. .

Do I need a solicitor to apply for a divorce?

It is advisable to get legal advice especially where children, property and money are involved. The more informed and supported you are the more in control you will be and, ultimately, protected.

You can start the divorce yourself by using a form called a "Petition" which you get from your local County Court. However, we recommend that you seek the advice of a specialist on which of the above facts to base your petition on as this may have a bearing on the length of the divorce process.  You will need to give the court your original marriage certificate.

Separate forms will be needed to deal with the division of the finances and children and these come with instructions on how to complete them and the court can explain to you what else you will need to do. The court staff cannot provide you with any legal advice on the contents of the forms or the likelihood of any application succeeding.

What is a Decree Nisi and Decree Absolute?

These are orders from the court.

The Decree Nisi is the first decree in the divorce proceedings.  This is where the Court has considered the Petition and supporting paperwork and is satisfied on the basis of the evidence before it that you are entitled to a divorce.  It is important to note that at this stage you are not divorced.

Once you receive the Decree Nisi you have to wait 6 weeks and 1 day and then you can make your divorce final by applying for Decree Absolute. This time period is to allow anyone who objects to the divorce to tell the court why they object, potentially still reconcile the marital breakdown and allow you to make any application or finalise the marital finances.

Once Decree Absolute is granted this means your divorce is completed and you are no longer married to your partner.

My partner applied for the divorce proceedings. What should I do?

If your partner applies for a divorce you will usually be sent copies of the divorce papers by the court. This will include an "Acknowledgment of Service Form". You need to fill in this form to confirm whether you consent or object to the divorce.

If you object you may need the help of a solicitor to defend the divorce. You should put on the Acknowledgment of Service form that you object to a divorce. You are then required to file an "Answer" explaining why you object.

What is meant by Respondent and Petitioner in the context of divorce?

The Petitioner is the person who applies for a divorce, judicial separation or nullity. The Respondent is the person who receives the divorce papers from the court.

Can I get my partner to help me pay the bills?

If you need him/her to continue paying all or part of the bills you can apply to the judge for maintenance,  You may get weekly or monthly payments or the court may tell your partner that they should pay the mortgage or rent directly.

Do I have to share my pension with my spouse on the breakdown of our marriage?

A pension is an asset which can be considered an asset of the marriage.  The value of the pension can be included in the ‘matrimonial pot’ to be divided between the parties.

There are a number of different ways of dealing with the division of a pension to include off setting the pension against another asset of the marriage such as equity in a property, earmarking a percentage of the pension for one party to receive in the future or a Pension Sharing Order.  A Pension Sharing Order will divide the pension and it will be split and transferred into a separate pension scheme for the recipient either in the same pension scheme or it may be transferred from that pension scheme to another chosen by the recipient.

It is vital that you obtain specialist advice in this complex area.

How much will a Divorce Cost?

Solicitors should offer you a fixed fee for applying for the divorce and advising you on the grounds to use.

Where children are involved and you want to negotiate the financial position this is charged separately.

I have now received my Decree Absolute. Are the divorce proceedings now over?

The marriage is now dissolved. It is important that you keep the Decree Absolute in a safe place as you will need to produce it if you re-marry. It is also important that you make a new Will as any gift you made to your spouse in a will made before Decree Absolute will lapse once Decree Absolute is pronounced. Although the divorce has concluded, however, financial matters may not yet have been settled and depending on how your Petition was drafted, further claims may still be brought.

For more information contact us…

0207 426 0382

enquiries@acitylawfirm.com