No bride or groom on their wedding day ever imagines that their nuptials will fail. However, in 2012 there were 13 divorces every hour in the United Kingdom. If spiritually and emotionally your marriage is over, at some point you will need to deal with the the practicalities of untangling your life from the life of your estranged spouse, in order to start afresh.
In this blog I hope to offer you some guidance during this confusing and difficult time by explaining the legal elements of divorce and the steps taken by the courts to dissolve a marriage. Having a clear understanding of the grounds for a divorce and the procedure your solicitor will follow throughout the process, will undoubtedly give you some confidence at a time when your future may seem terribly uncertain.
Before we begin, I know you have probably heard many of these statistics before, however, they are worth repeating, if only to reinforce that you are far from alone in the difficulties you are facing at the moment.
- The average age for divorce is 45 years for men and 42 years for women
- 48% of couples who divorced in 2012 had at least one child under the age of 16 years
- Divorce petitions spike markedly in January
The Grounds for Divorce
In order to apply for a decree to end your marriage, you must have been married for one year or more.
The only ground for obtaining a divorce is that the marriage has broken down irretrievably. In order to make a finding of irretrievable breakdown, one of the following five factors must be proven.
The meaning of adultery, when being considered in a petition for a divorce, is the consensual sexual intercourse between a man and a woman, who are not married to each other, but one of them is married to another person. An attempt to commit adultery will not suffice, however, this can fall under the category of ‘unreasonable behaviour’ (see below).
The Petitioner for divorce who is citing adultery must go on to prove that they now find it intolerable to live with the Respondent, although in uncontested cases, this tends to go unquestioned by the court.
If the Petitioner can show the court that their spouse acted in a way that they cannot possibly be expected to live with them, then the court will be satisfied that the marriage has irretrievably broken down.
The unreasonable behaviour can range from irritating habits through to outright abuse and violence; the test of what constitutes unreasonable behaviour is a subjective one. The court will ask itself whether a right thinking-person would conclude, based on the behaviour of the Respondent, that the Petitioner could not reasonably be expected to live with them and continue with the marriage.
Irretrievable breakdown of a marriage may be proved if the Petitioner for divorce can show that the Respondent has deserted the Petitioner for a period of two years. In order to show desertion the following elements must be present:
The deserting party must intend:
- To end co-habitation with their spouse
- Instigate a physical separation
The Petitioner must show:
- They did not consent to the separation
- They did not personally behave in such a way as to bring co-habitation to an end
The Parties Have Been Living Apart for Two Years Continuously and Both Parties Agree to a Divorce
If the Petitioner and the Respondent have been living apart continuously for two years immediately preceding presentation of the petition, and they are both amicable to a decree to end the marriage being granted, then the irretrievable breakdown requirement will be satisfied.
The parties can be living in the same house, but they must prove they ‘live separately’ ie they have separate meals, financial arrangements etc
The Parties Have Been Living Apart for Five Years Continuously
If the parties have lived apart for five years immediately preceding presentation of the petition then a divorce can be granted without the Respondent’s consent except under special circumstances such as grave financial hardship.
The Procedure for Applying for a Decree Nisi in Divorce
The first step towards gaining a divorce is to apply for a decree nisi. A decree nisi does not end the marriage, rather it is an order given by the court stating the date on which a marriage will finish unless a good reason is given for why a divorce should not be granted.
It is important to seek independent legal advice at this point. Your solicitor will assist you on the filling in and filing of the form which is needed to apply for the decree nisi. They will also advise you on making arrangements between you and your estranged spouse for any children involved in the marriage and file the Statement of Arrangements for Children form in court on your behalf. Finally, they will handle the financial investigations and negotiations that will need to take place to ensure you receive your fair share of the matrimonial assets.
When the court receives the divorce petition they will send an Acknowledgement of Service to the Respondent, which they will be required to return to the court within twenty one days, stating whether or not they will be defending the divorce petition. If the Respondent takes no action, then after twenty one days the Applicant can proceed as if the divorce is being undefended.
Once the decree nisi has been granted, the applicant will be required to wait six weeks before being able to apply for a decree absolute (see below). This allows time for the Respondent to defend the application.
An Undefended Application
If the application for divorce goes undefended, then after six weeks the Applicant may apply for a decree absolute. There is a fee involved at this stage (outside of solicitor’s fees) and the current sum at present is £410.00. If the Applicant is on a low income or is receiving benefits, they may be entitled to have the fee waived.
The entire process for an undefended application takes between five to six months, if there are no complicated issues around child care and financial matters to be resolved. Conflicts between the parties surrounding the care of their children and complex financial settlements can delay matters for a considerable length of time.
A Defended Application
Most applications for divorce are not defended. Defending a divorce is extremely difficult as the court will almost always grant a divorce if one party is determined to obtain one. On top of this, defending a divorce is very expensive. However, some respondents do chose to defend a divorce for reasons including:
- Delaying the proceedings in hope that the Petitioner reconsiders their desire for a divorce
- To defend their reputation if they believe the grounds cited by the Applicant for the divorce (such as adultery or unreasonable behaviour) are untrue
- To allow for a cross-petition
It is important to note that if your spouse chooses to defend the divorce, you have the right to ask the court to make a costs order against him or her if their defence proves unsuccessful.
A cross-petition involves the Respondent to the application for a divorce issuing a separate petition to divorce the Applicant. Often this is done in situations where unreasonable behaviour is cited in the divorce petition and the Respondent feels strongly that the Applicant’s behaviour caused or heavily contributed to the irretrievable breakdown of the marriage and wants to make this point clear in a court of law.
Although your lawyer will act on your final instructions, it is likely that you will be advised, for the sake of your emotional and financial best interests, to not defend or cross-petition a divorce unless absolutely necessary.
The Final Step
Once childcare arrangements have been approved by the court and all the paperwork has been completed, the final step is for the court of grant a decree absolute. This is a formal court order ending the marriage and allowing each party to remarry.
Divorce proceedings are an extremely emotional time for all involved, however, with the right legal advice and as much amicability as possible between the parties, the process can be clean and simple, allowing each party to move on with their lives as quickly as possible.
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