Filing for Divorce (Guide to the Divorce Process)
In England or Wales you can file for divorce if you have been married for at least one year and your relationship has irretrievably broken down. The following is a general guide to the process of filing for divorce, and the key legal considerations when completing the initial petition through to applying for a decree absolute.
Filing for divorce: Step-by-step
The procedural steps when filing for divorce are in themselves relatively straightforward. Circumstances and arrangements relating for example to children and finances can however complicate and protract the process. As a basic overview, the divorce process involves:
- Completing the petition – petitioning for divorce is the first step in the divorce process. It is an application asking the court to formally dissolve the marriage.
- Filing the petition – the petition must be filed with the court, together with an original or certified copy of the marriage certificate and the correct court fee.
- Service on the respondent – a copy of the petition will be served on the respondent by the court. The respondent will be required to acknowledge service within 7 days and to confirm whether they object. If the respondent chooses to defend the petition, the parties will be required to attend a hearing for the court to make a determination on the facts.
- Applying for a decree nisi – in the event that no objection is raised, the petitioner can apply for a decree nisi. The decree nisi is confirmation from the court that the petitioner is entitled to a divorce. It will not, in itself, end the marriage.
- Applying for a decree absolute – the petitioner will be required to wait 6 weeks plus one day from the date of the decree nisi before they can apply for the decree absolute. The respondent can also apply for the decree absolute, although s/he will need to wait a further 3 months after the time when the petitioner could have applied.
- Grant of the decree absolute – this is the final decree of divorce and will formally bring the marriage to an end, leaving the parties free to remarry.
Who can file for divorce?
Either party to a marriage can file for divorce, although the petitioner must be able to show that the marriage has broken down irretrievably, to the point that it cannot be saved.
The petitioner is the one filing for divorce, whereas the respondent is the one being petitioned against and responding to the matters contained within the petition. A couple cannot file for divorce on a joint basis.
In order to obtain a divorce in England or Wales, you and your spouse must:
- • have been married for at least one year
- • be domiciled in England and Wales
- • have a marriage recognised as valid by UK law
- • have grounds for divorce.
What are the grounds for divorce?
In England and Wales there is only one ground for divorce; the irretrievable breakdown of the marriage. To apply, this ground will need to be supported by one of five facts:
- Adultery – the petitioner must show that the respondent has had sexual intercourse with someone of the opposite sex and, in consequence, s/he now finds it intolerable to live with the respondent.
- Unreasonable behaviour – the petitioner must show that the respondent has behaved in such a way that s/he cannot reasonably be expected to live with the respondent, for example, verbal abuse or excessive spending.
- Desertion – the petitioner must show that the respondent has deserted him/her against their wishes for a continuous period of at least 2 years immediately preceding the presentation of the petition.
- 2 year separation – the petitioner must show that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, and that the respondent consents to a decree being granted.
- 5 year separation – the petitioner must show that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
The challenges when filing for divorce
Whilst the procedural steps are relatively simple when filing for divorce, there are important practical challenges for the petitioner, not least proving one of the five facts to demonstrate an irretrievable breakdown of the marriage. This can be particularly difficult in cases of adultery or desertion.
Without an actual admission from the respondent, the physical act of adultery can be difficult to prove. Further, the hurt and betrayal of adultery can often lead to petitioners identifying the third party involved – a decision that can easily prolong matters once a co-respondent has been joined into proceedings.
With desertion, the petitioner needs to show that their spouse intended to bring the relationship to an end over a 2 year continuous period, including at what point that intention became present. Needless to say, desertion is rarely cited as one of the facts to show that a marriage has irretrievably broken down.
The most common fact used in support of a divorce petition is unreasonable behaviour, although even this has its challenges. In determining whether the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them anymore involves an exercise of discretion on the part of the court.
In the recent case of Owens v Owens (2017) the judge refused to grant Mrs Owen’s petition leaving her locked in a long loveless marriage. Whilst the judge had found as of fact that the marriage had broken down, he held that minor altercations were to be expected and were not grounds for divorce.
In practice it can often be a fine balance between citing behaviour that a court will accept as unreasonable, and that which the respondent will readily admit to. Needless to say, some allegations can exacerbate any acrimony between the parties, adding additional stress to any disputes relating to finances or custody and contact with the children.
Filing for divorce on a no-fault basis
In England and Wales we do not have a system of no-fault divorce. A petitioner must establish irretrievable breakdown of the marriage through one of the five facts set out above.
If a petitioner wishes to wait either 2 years (with consent) or 5 years (without consent) following any separation, they can at least file for divorce without assigning blame. That said, it may not be practical to wait this long, not least because the grant of a decree nisi is necessary to finalise any financial arrangements through the courts.
In practice, when filing for divorce, most petitioners will choose not to wait, opting instead for one of the other more problematic facts to prove that their marriage has irretrievably broken down. It is therefore always advisable to seek legal advice.
Seeking legal advice when filing for divorce
Filing for divorce can become a legal and practical minefield, not least when deciding which facts to cite to satisfy the court that the marriage has irretrievably broken down.
Moreover, any financial or child custody and contact disputes arising out of the divorce can result in protracted, complex and often expensive litigation.
It is always best to seek expert advice from a specialist in family law. Your legal adviser can talk you through your options when filing for divorce, as well as the practical steps that you can take to minimise the cost, time and stress involved.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.