Divorce

Submitted by Sarah Gledhill on Wed, 03/14/2018 - 10:14
Divorce

Divorce

Divorce can be a daunting prospect for many people and for most, a less than pleasant experience. Not only has the marriage fallen apart, resulting in emotions running high and plenty of stress, but now you have to face all the legal papers required to actually obtain the divorce. From an outside perspective divorce can seem like quite a complex mess of legal jargon with lots of papers to fill out. More so if you are not a UK national and don’t know where to start or harbour misconceptions about the UK process.

Just to clarify, if either you or your spouse habitually reside in the UK, then you can get a divorce here regardless of where you married. Many who have a choice about where to go choose to divorce here as the divorce laws can work to their advantage. 

In the UK getting a divorce, whilst a Court process is in the main a paper only exercise that does not normally involve actually going to Court in person.  However, since this is a Christian country, in theory at least, to obtain a divorce you must have good reason and a Court process is inevitable.  

A person can only obtain a divorce if they have been married for over a year. This may prove tricky for those who got caught up in a whirlwind romance that’s fizzled out after just a few months. The rule is there to ensure people give their marriage a proper chance before ending it forever.

The divorce procedure starts with an application to the court, known as the divorce petition. This is simply the form used by the spouse or civil partner who wishes to apply for the divorce. It sets out both parties’ details and then requires the petitioner (the person bringing the claim) to provide a reason for wanting a divorce. Completing this form is not as simple as saying ‘I don’t love you anymore.’ There are certain legal requirements that need to be met. Firstly, there is only one ground for divorce and that is ‘that the marriage has broken down irretrievably’. This might confuse people who want to argue that they wish to divorce because their spouse has had an affair or that they have treated them badly. These arguments are used as facts to prove the grounds that their marriage has irretrievably broken down. In fact, there are 5 ways to prove the grounds for divorce and these are: adultery, unreasonable behaviour, 2 years separation (with the consent of the other spouse), 5 years separation (where no consent exists) and desertion. It is up to the petitioner to pick the grounds that apply to them.

Adultery may be one of the more common reasons marriages breakdown and will require the petitioner to provide information regarding their spouse’s affair; when did it take place, how has it affected their marriage? It is possible to name the person their spouse had an affair with on the petition but that can be messy and is usually advised against.  It’s not enough to just argue that their spouse has committed adultery, the petitioner needs to show that because of this they can no longer reasonably be expected to continue living with their spouse. This means explaining how it has made the petitioner feel.

Unreasonable behaviour is also a common reason for wanting a divorce as it covers the situation where the petitioner finds it intolerable to live with their spouse. These grounds can cover a wide range of behaviours and situations from aggression and violence through to poor hygiene and an unsatisfactory sex life. Again, it is not enough to just argue that their spouse is committing unreasonable behaviour, the petitioner needs to explain how their behaviour makes them feel and why they find it intolerable to live with their spouse. So really, the Court just wants to know ‘what is it about this person that makes you want to divorce them and why?’.

Two years separation may be a more amicable divorce as it requires the consent from the respondent. This means that the parties must have been living separately for at least 2 years and that they both consent to the divorce.

Five years separation does not require consent from the respondent so if the petitioner can prove they have been living apart for at least 5 years then that will be enough to make the application.

Desertion is a little bit more complex as the petitioner needs to show that their spouse has left them without their consent and that brought the marriage to an end. They need to have been separated for at least 2 years to be eligible to argue this. These facts are more technical and require proof of the times that the petitioner and their spouse were last living together.

Along with the Divorce petition, the couple’s marriage certificate needs to be sent to the Court along with a fee of £550 to start the divorce procedure. Some people may be exempt from paying this fee if they are on benefits or low income.

A copy of the petition is sent to the spouse of the person bringing the divorce. It is then up to the spouse to respond to the petition by acknowledging it and then either agreeing to the divorce or disagreeing with it. If they disagree with the divorce or file their own petition then the Court will hold a hearing for the parties to put their arguments forward. This can be onerous for both parties as they will most likely be required to attend court. In reality, it is very nearly impossible to successfully challenge a divorce and for that reason nowadays contested divorces are rare.

If everything goes well and the spouse agrees to the petition then the divorce can go ahead. This is where it may get a bit tricky for people to follow. The next step is to apply for something called a ‘decree nisi’. This is simply a certificate from the court that states that they don’t see any reason why the divorce cannot go ahead, but it must be stressed that this does not bring the divorce into effect. To apply for the decree nisi, an application must be made and a statement needs to be made that confirms everything stated in the divorce petition is true. There are 5 different statements that correspond with the five facts used to prove the grounds for divorce. If this application is successful then both parties receive a certificate from the court which states the date, time and place the decree nisi will be read out in Court (this is called a pronouncement). The pronouncement is just a formality and there is no requirement for either party to attend court (unless they want to object to the divorce, which is very rare).

The final step in the divorce procedure is to apply for what is called a ‘decree absolute’. This is the legal document that formally ends a marriage. The petitioner needs to wait 6 weeks from the pronouncement of the decree nisi before they can apply for the decree absolute giving them time to prepare for the effect of the divorce. If the petitioner fails to apply for this then the respondent can apply after a further 3 months, but they will be required to attend court to allow the petitioner to argue why the divorce should not be granted. If all goes to plan and the court grants the decree absolute both parties receive the document stating their marriage is ended and that’s it, they are divorced and can re-marry.

This whole procedure is quite bureaucratic and can seem complex. It may therefore be advisable to seek legal help with the process. Most law firms that provide divorce services will carry out the divorce procedure for a fixed fee.

What a divorce doesn’t however do is resolve any financial issues between the spouses nor issues over child maintenance. It is always advisable to formally resolve such issues by means of a legally enforceable agreement. Failure to do so can be costly in the long run since either party can claim property from the other, even years later. Moreover, if you have written a will leaving all of your property to your former spouse, you may want to change the terms. 

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