How to get a divorce

Posted by Laura Bennett on

In order to apply for a divorce, one spouse must divorce the other, although there are calls for a change to a 'no-fault' system.  For more information about the proposed changes, please see the blog written by my colleague Catherine Morgan.

The spouse who wishes to initiate divorce proceedings must prepare a divorce petition.  Within the proceedings, this spouse becomes known as the Petitioner and the other spouse is known as the Respondent. 

The divorce petition is an eight page document which provides the Family Court with all of the personal details about the family and the marriage, and also confirms to the Court that they have jurisdiction to issue the proceedings.  As a general rule, provided that both parties are living full-time in England and Wales, then the Family Court will have jurisdiction.  It becomes more complex where a party to the marriage lives or works abroad, but your solicitor will be able to give appropriate advice if this is relevant.

The petition also sets out why a divorce is sought.  The only ground for seeking a divorce in England and Wales is that the marriage has irretrievably broken down.  This is evidenced by one of five facts:

  1. The Respondent has committed adultery and the Petitioner finds it intolerable to continue to live with them;
  2. The Respondent has behaved so unreasonably that the Petitioner can no longer bear to live with them;
  3. The Respondent has deserted the Petitioner for a continuous period of two years or more;
  4. The parties have been separated for two years and the Respondent will consent to the divorce being granted; and
  5. The parties have been separated for five years.

Finally, the divorce petition also sets out the financial claims that the Petitioner may wish the Family Court to consider as part of the proceedings.  However, a separate application is required to commence formal financial remedy proceedings. 

Once the divorce petition has been issued by the Family Court, it is then served upon the Respondent.  The Respondent is required to complete an Acknowledgement of Service and return this to the Court.  If the petition has been based upon the Respondent's adultery, this must be admitted within the Acknowledgement of Service.  Similarly, if the petition is based upon a two year separation, the Respondent must sign the Acknowledgement of Service to indicate their consent to the divorce proceeding.

Once the Acknowledgement of Service is returned to the Court, the Petitioner is able to make an application for Decree Nisi.  All being well, the Court will issue a Certificate of Entitlement to a Decree Nisi, which will give a time and a date for the Decree to be pronounced in open Court.  The parties are not required to attend Court on this date.  The Decree Nisi is then sent to both parties.  The Decree Nisi indicates that you are entitled to a divorce and that the Court intend to formally dissolve the marriage.  However, it is very important to note that the divorce is not finalised at this stage and the parties remain legally married.

Six weeks after the pronouncement of Decree Nisi, the Petitioner can apply for Decree Absolute to be pronounced.  This is the Decree that formally dissolves the marriage and from the date of the pronouncement the parties are legally divorced.

The process for seeking a divorce appears relatively straightforward, although we recommend that legal advice is sought prior to initiating proceedings.  Securing a financial settlement is a separate process that runs alongside the divorce proceedings, and in many cases it is prudent to avoid applying for Decree Absolute prior to a financial settlement being agreed and recorded in a Consent Order which has been sealed by the Court. 

For more information and FAQs, please see our Divorce and Separation Guide, here.

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Laura is a Senior Solicitor in the Family team based in Oxford.

Laura Bennett
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01865 258052

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