Obtaining a divorce can be straightforward if both parties agree that the marriage is over. Difficulties arise in resolving how and when to separate, where to live, and what arrangements to make for children and finances.
This fact sheet answers some of the common questions asked. At Blake Morgan, we offer a constructive approach to help progress things as quickly as possible. We will be happy to discuss anything that is unclear or answer any further questions you may have.
Who can start divorce proceedings?
Anyone who has been married for over a year, providing one of the couple has their permanent home, or has been resident at least a year prior to the date the divorce petition is issued, in England or Wales. It doesn’t matter where you were married.
How can a divorce be started?
The only grounds (reasons) for divorce are that your marriage has “irretrievably broken down” and one of five “facts” applies. The divorce petition (formal written request) will only be accepted by the Court if you can prove this.
What are the five facts?
- Your partner has committed adultery and you find it impossible to continue to live with them.
- Your partner’s behaviour has been so unreasonable that you can no longer bear to live with them.
- Your partner has deserted you for a continuous period of two years or more, against your wishes.
- You and your partner have been living apart for over two years and you both agree to a divorce.
- You and your partner have been living apart for over five years (consent not required).
Marriage of same sex couples
The Marriage (Same Sex Couples) Act 2013 (2013 Act), extends the right to marry to same sex couples in England and Wales. The provisions of the Act do not extend to Northern Ireland or to Scotland. Same sex marriage in those jurisdictions is currently unlawful. In Northern Ireland and Scotland, a same sex marriage entered into elsewhere will be treated as a civil partnership. Until same sex marriages are lawful in these jurisdictions, the dissolution of same sex marriages in Northern Ireland and Scotland (deemed to be civil partnerships governed by the Civil Partnership Act 2004 (CPA 2004) will be treated as having brought the marriage to an end in England and Wales too. For more information relating to dissolution of a civil partnership please see our fact sheet titled 'About dissolution of a civil partnership.'
If you have converted your civil partnership into a marriage then when calculating the length of the marriage [you have to have been married for over a year before you can petition for divorce] the date of the marriage is calculated as the date on which the civil partnership was entered.
Note. You will only be able to allege adultery if the conduct alleged was between the respondent and a person of the opposite sex. Sexual conduct with a person of the same sex does not constitute adultery.
If one of the five facts applies, what happens next?
This depends on your particular circumstances. It is often sensible to try to obtain your partner’s consent to the divorce and try to reach agreement over the contents of the petition. Only a brief outline of circumstances needs to be given at this stage.
What does the petition include?
Every petition follows the same format. It contains basic information about you and your partner, addresses, the ages of any children and a statement that the marriage has “irretrievably broken down” and the “fact” that applies.
The petition will include a section known as a “prayer”, which will include a request for the divorce to be granted. It may also include a request for a financial order relating to your children, a claim regarding the legal costs of the divorce and an order for financial provision.
How much does the divorce cost?
This depends on the finances of each partner. You may have to pay for:
- the petition issue fee
- the decree absolute
- applications for financial support.
You should ask your adviser for an estimate of the costs and payment options available.
What is mediation?
Mediation is where a specially trained, impartial mediator helps couples to communicate and reach their own decisions. The service is confidential and a written copy of the decisions reached is sent to both of you, and your solicitors if you wish. Research shows that mediation reduces your bitterness and stress. It is usually quicker and cheaper than court proceedings.
What is collaborative practice?
This is a process in which you agree to opt out of the Court system to resolve disputes relating to finances and to children. The divorce suit must still be processed through the Court however in order to obtain a decree absolute. Any issues arising from the divorce procedure such as which party will petition for divorce, the ground on which they will divorce and how the costs of the divorce suit will be paid for, can be agreed in the collaborative process in four way meetings between you, your partner and your respective collaboratively trained lawyers. Each of our family teams has trained collaborative lawyers.
Are financial issues dealt with before the divorce is finalised?
It is not necessary for financial discussions to be completed by the time the divorce is finalised. Frequently they will still be in the early stages if the finances are complicated. Even when matters are agreed it can take several months to conclude them. However, it should be possible to resolve immediate problems and make temporary maintenance arrangements.
Are the proceedings public?
Court proceedings in family law are usually private. This means that the public and media are not allowed access to the Court papers. However, the press can publish the fact that the divorce has been pronounced. The information that they may disclose is very limited. They can disclose the “facts” of the divorce but they are not allowed to publish details of any unreasonable behaviour or adultery.
How long does the divorce process take?
The divorce takes approximately four to six months, although the Decree Absolute is often not obtained until the finances are resolved. This may be much later.
Common terms used in family law
- Affidavit – a sworn document
- Decree nisi – the Court’s certificate that you are entitled to a divorce
- Decree absolute – the document that shows that you are divorced and able to remarry
- Petitioner – the person bringing the proceedings
- Respondent – the person responding
- Financial order application – the term for sorting out the financial matters