On paper the divorce process may appear straightforward, but the reality is often somewhat different.
Divorce can be expensive and emotionally draining given what’s at stake; if children are involved, high value assets, and the reason(s) behind the separation.
Some couples are amicable and able to agree quickly the terms of the divorce or dissolution of their civil partnership, without the assistance of a Solicitor until the final stages whereby they need to draw up the relevant legal documents or use what’s being known as ‘quickie divorces’. There are warnings about this as some couples are not completing the appropriate legal documents, not using the expertise of a Solicitor so the agreements are not legally sound as well as potentially leaving themselves wide open to future claims from their former spouse.
You can initiate your divorce process if you meet specific criteria; residing in England and Wales, can demonstrate you were in a recognisable marriage, prove your relationship has broken down and you have been married for more than a year.
For those who have been married for less than a year, then an option could be an annulment.
So what’s involved in applying for a divorce?
Step 1 – Mediation
Firstly, the court looks favourably at a couple who has tried mediation, by attending an Initial Mediation Information Assessment meeting (MIAM).
Mediation is offered to couples, to provide a less confrontational, relaxed setting, with a trained mediator, to discuss and resolve potential issues over arrangements concerning children (where relevant), finances or property. Sometimes, it can take up to 4 additional sessions to agree outcomes.
Exemptions to mediation tend to be whereby domestic violence is apparent or there are concerns over the welfare of the children, in line with the Children’s Act 1989.
If one of the parties refuses to attend, then it’s advisable for the other person to still go.
Mediation is proven to be a quicker and a much cheaper route to agree terms rather than involving the full weight of the courts.. Though, it may not be an option for everyone.
If both parties agree terms, such as finances and arrangements for children, during mediation, then a ‘Memorandum of Understanding’ is drawn up and issued to the court.
Alternatively if mediation has not been attended or it’s not been positive, then it’s left either up to the Court to agree or further lengthy, costly discussions between Solicitors.
Step 2 – Determine the grounds for divorce
You have to prove grounds for divorce – ie that the marriage has irretrievably broken down. There are 5 legal ‘facts’ to evidence your grounds for divorce:
- Adultery: Either spouse has been involved sexually with another person.
- 2 years separation with consent. Agreed to live apart for two years and you both wish to go ahead with the divorce.
- 5 years separation without consent. Lived apart for 5 years following the divorce petition.
- Desertion: Your spouse left you without your agreement, for two continuous years.
- Unreasonable behaviour: You can prove it’s not possible to live with your spouse due their behaviour, which could be due to alcohol, threats of violence, or no common interests to name a few.
Step 3 – Divorce Petition/Juridical Separation
One of the spouses (known as ‘petitioner’) files an application called ‘divorce, dissolution or separation’ order, also simply known as a ‘divorce petition’. The issue of the document starts the divorce proceedings against their spouse(‘respondent’). It is possible for both spouses to file a petition against each other but then it can become a costly process.
The petition will ask for:
- Petitioner’s and Respondent’s personal details
- Specifics of any children
- Grounds for divorce
- If appropriate your Solicitor’s details
- Marriage dates along with marriage certificate
- If relevant details of the adultery – (known as Co-respondent).
- Financial provision
- Requirement of the divorce i.e. marriage to be dissolved.
- Any associated costs which to claim
Alongside this, a ‘Standard Court Form’ will be drafted with details of the arrangements (Statement of Arrangements) to be made for the children, if they are under 16 years of age or up to 18 years if they are still in full-time education. Normally both parents will have seen this prior to submission to the court.
This can be a flexible or a legal agreement, whereby your Solicitor will draft a ‘consent order’ which is to be approved by the Court. If there is no consensus then there could be a court hearing.
In terms of finances, if this can’t be agreed then a financial order will be drafted and submitted to the court. It’s important to be mindful that if a partner is co-habiting, then the new partner’s assets can be considered too and it’s also dangerous to agree finances post divorce.
The divorce petition is then sent to the Court, by your Solicitor or yourself, who issues it to your spouse if the Court agrees that the ‘marriage has irretrievably broken down’. A ‘Notice of Issue of Petition’ is sent to the Petitioner to acknowledge this has been served to the Respondent.
Your spouse will have 8 days to acknowledge receipt of the petition, by signing the ‘Acknowledgement of Service’. If agreement is made, then the Court will send a copy of this to the Petitioner with a ‘Notice of Issue of Petition’ who then needs to swear in their statement, ‘affidavit’ in front of a legal court official or Solicitor.
On the other hand, if your spouse contests the petition which is known as ‘Answer’, then there is a 29 days open window to ask the court for a ‘directions of trial’ which can lead to a final hearing.
If arrangements for children and financial matters are agreed then it’s straight forward. Though if there is no consensus, then there will be court intervention with potential court hearings, mediation, issuing of financial orders and consent orders with the support of a Solicitor.
Step 4 – Decree Nisi
Once the Judge feels that everything is in order, such as arrangements for any child-related and financial information, the Decree Nisi will be granted.
This document states that the court provisionally grants the divorce which has adhered to legal and associated procedures. It’s important to note the couple is still married at this stage.
Step 5 – Decree Absolute
Normally six weeks after the Decree Nisi has been granted, the petitioner can apply for the Decree Absolute. It’s normally advised to only action this where finances are in order.
This is the final, legal stage of the divorce process..
Navigating the UK divorce process can be stressful, and compound any existing emotional, financial and other stresses of this life-changing step. Take advice from an experienced legal professional to ensure your needs and rights are represented. Even where divorce is amicable, taking steps now to safeguard and avoid any potential future claim or issues.