Divorce and Separation
The mechanics of obtaining a
divorce nowadays are usually quite straightforward particularly if the
couple agree that the marriage is over. The difficulties tend to lie
rather in resolving the related practical issues such as how to separate,
where to live, arrangements for the children and any financial and
Your attention will probably be concentrated on those related issues and
the process of actually obtaining the divorce may seem blurred. The
purpose of this letter is to outline a broad framework of the divorce
process, to highlight key points and to set out the sort of timetable to
1. Who can start divorce proceedings?
Anyone who has been married for
over a year provided one or other of the couple is either domiciled here
or has been resident in England or Wales during the preceding year.
Domicile is the county you consider to be your permanent home. It does not
matter where the couple were married.
2. On what grounds can a divorce petition be started?
The only ground for divorce is
that the marriage has irretrievably broken down, but there is a
complication. That can only be proved if one of the 5 facts laid down by
law, is established.
3. What are the ‘facts’?
(a) Your spouse has committed
adultery and you find it intolerable to continue living together.
(b) Your spouse has behaved in such a way that it would be unreasonable to
expect you to continue living together.
(c) Your spouse has deserted you for a continuous period of 2 years or
(d) You and your spouse have been living separately for 2 years or more
and your spouse agrees to the divorce.
(e) You and your spouse have been living separately for 5 years or more,
whether or not your spouse consents to the divorce.
4 If the marriage has ‘irretrievably broken down’ i.e. one of the 5
facts applies, what happens next?
This will depend upon your
particular circumstances. It is often sensible to try to obtain your
spouse’s consent to the petition and to try to reach agreement over the
contents of the petition. For example, if your spouse accepts that the
petition should be based on unreasonable behaviour, only a brief outline
of the particular behaviour may need to be given.
5. What does the
petition actually look like?
Every petition follows the same
form. It contains basic information about names, addresses, ages of
children and a statement that the marriage has irretrievably broken down.
It will also state the ‘fact’ on which it is intended to rely.
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 an order relating to children; a claim regarding costs of
the divorce; and an order for financial provision.
6. What about the
A form is sent to the Court
with the divorce petition, which will outline the arrangements relating to
the children. The law encourages couples to try and agree those
arrangements. The form (known as a ‘Statement of Arrangements’) is
usually completed by the person filing the petition. Preferably it should
be sent to the other spouse before it is filed. If agreement is not
reached, this does not prevent the divorce from proceeding.
7. Are financial
issues dealt with before Decree Absolute is pronounced?
It is not necessary for
financial discussions to be completed by the time the divorce is final.
Frequently they will still be in the early stages if finances are
complicated. However, it should at least be possible to resolve immediate
problems and make temporary maintenance arrangements. It is however
important to include a potential/intended financial claim in the relevant
section of the divorce petition called the prayer.
Either spouse may start the
divorce. He or she is referred to as the ‘Petitioner’. The Petition
and Statement of Arrangements about the children are completed and then
sent to the Court together with the marriage certificate. A fee, currently
£340.00 is payable unless the Petitioner is being advised under the Legal
Within a few days of sending the petition to the Court, the Court sends a
copy of the Petition and Statement of Arrangements to the other spouse,
referred to as the ‘Respondent’. A copy of the petition is also
sent to anyone named in the adultery petition. That person may be referred
to as the ‘Co-Respondent’. If the Respondent (or Co-Respondent) has
instructed solicitors, the petition may be sent to them (although it is
nowadays unusual for a co-respondent to be named in a divorce petition)
From the date the documents are received the Respondent has strict time
limits to observe:
(a) Within 8 days He or she
should send to the Court a form called an ‘acknowledgement of service’
which accompanied the petition. The form asks the Respondent whether
it is intended to defend the petition, whether any claim for costs is
disputed and whether orders affecting the children are sought. It is
however usual to allow up to 14 days for filing the acknowledge so that
the Respondent can seek legal advice if required.
(b) Within 29 days of receipt (longer if the documents have to be sent to
an address abroad). Whether or not an acknowledgement has been filed, the
Respondent must, if he or she intends to defend the petition, file a
defence (called an ‘Answer’). The petition then becomes defended
and the procedure outlined below does not apply. Defended divorce
proceedings resulting in a fully contested hearing are very rare. However,
a delay in finalising the divorce is inevitable if the forms are not
returned on time.
Within a few days of receiving the acknowledgement of service form from
the Respondent (and Co-Respondent) the Court sends to the Petitioner’s
solicitors a copy of the form(s) of acknowledgement of service.
If the Respondent is not defending the petition, the petitioner can apply
for the Decree Nisi to be pronounced. The Petitioner’s solicitor prepares
an affidavit for the Petitioner to swear confirming that the contents of
the petition are true. It will also state whether any circumstances
(including those relating to the children) have changed since the filing
of the petition. The Petitioner will swear the affidavit before a
solicitor or Court Official and it will then be sent to the Court with the
request for a date for the first decree of divorce (‘Decree Nisi’)
to be pronounced.
If acknowledgements of service are not returned to the Court?
Proof that the Respondent and any named Co-Respondent have received the
Petition will have to be obtained before the Petitioner can take the next
step. This may involve arranging for someone to deliver the petition to
the Respondent and any named Co-Respondent personally or obtaining a Court
order that proof does not need to be given that the Respondent and
Co-Respondent have received the petition, this is called ‘dispensing
On receipt by the Court of the Application for a date for pronouncement of
the Decree Nisi and Affidavit, the District Judge looks through the papers
and, if they seem in order, gives a certificate for Decree Nisi to be
pronounced. Both the Petitioner and the Respondent (through their
solicitors) are then advised of the date fixed for Decree Nisi. Depending
on the Court’s diary, the date is likely to be a few weeks after the
application is lodged. The couple do not have to attend Court.
If the arrangements in relation to the finances and children are settled
between their parents or there are no children:
(a) 6 weeks and 1 day after the date of Decree Nisi. The Petitioner may
apply for the final decree (‘Decree Absolute’) by sending the
appropriate form to the Court. This step is not automatic. This Decree
will be processed and may be available as quickly as the same day. A fee,
currently £45, is payable.
(b) 3 months after the Petitioner could first have applied for Decree
Absolute, the Respondent may apply for the Decree Absolute if the
Petitioner has not already done so.
What normally happens with regard to the children?
If agreement has been reached, the District Judge is unlikely to
interfere. If agreement has not been reached, the District Judge may ask
the Petitioner and the Respondent (accompanied by their solicitors) to
attend an informal appointment to explore a solution to the difficulties.
The District Judge may ask for a Court Welfare Officer to become involved.
If a solution cannot be reached, this will delay the application for the
final decree of divorce.