Getting started – divorce in a nutshell
Divorce is often a bewildering, costly and stressful event in people’s lives. It is vitally important that the paperwork is correctly prepared ensuring that the process is as smooth and hassle-free as possible.
Although it is perfectly possible for a non-lawyer to draft the petition and associated paperwork, very few legal professionals recommend this approach. This is not because they are trying to monopolise the work and make money from you but, instead, most divorce lawyers have an in-depth knowledge of the divorce process and the potential pitfalls. Therefore, they can prepare documentation that will pass a district judge’s scrutiny first time, thus ensuring there are no unnecessary delays nor trips to the court to rectify drafting mistakes!
Some quick definitions
Petitioner – The person who applies for the divorce.
Respondent – The other person in divorce proceedings upon whom the divorce petition is served.
In order to start divorce proceedings in England and Wales, you must meet the following criteria:
- You must have been married for at least 12 months; and
- One of you must be resident in England and Wales (i.e. live there permanently). Alternatively, one of you must be domiciled in England and Wales (i.e. regard either as your home country).
Express Divorce only deal with uncontested divorces. Therefore, it is vitally important that, in addition to the above criteria, you and your spouse also agree upon the grounds for divorce.
Through the petition, a petitioner must satisfy a judge that their marriage has ‘irretrievably broken down.’
To demonstrate that a marriage has irretrievably broken down, a petitioner must prove one or more (normally, only one) of the following facts:
- Unreasonable behaviour;
- 2 years’ separation;
- 5 years’ separation;
A substantial number of petitioners issue divorce proceedings based on the fact of unreasonable behaviour. There is no definitive list of unreasonable behaviour and the statement of case in a petition does not need to be particularly ‘over the top.’ Normally, 3 or 4 examples of behaviour are enough to satisfy a judge that the marriage has broken down.
Adultery petitions are the second most common petitions followed by petitions based on 2 years’ separation. 5 year separation petitions are uncommon and petitions based on desertion are rare.
At the time of writing, The Divorce, Dissolution and Separation Bill (aka the ‘no fault divorce bill’) is currently working its way through the parliamentary process. It will likely become law at some point in the next 12 months and is the first major change to divorce legislation for over 50 years.
Once the bill becomes law, divorcing couples can jointly apply for a divorce by stating that their marriage has irretrievably broken down rather than prove one of the above facts. Although this may make divorce much easier and less contentious, it may also increase the divorce rate.
The Divorce Petition
Nowadays, divorce petitions are filed at regional divorce centres although an increasing number are filed online via the court portal. Prior to 2015, petitioners (or their lawyers) filed the petition at the local county court.
A legal advisor at the court or online court centre checks the petition before it is issued. If the petition is issued online, the respondent will receive a letter with details of how to login in to the online portal and acknowledge the petition. Otherwise, the respondent will receive a paper copy of the petition together with an acknowledgement of service pack.
The Acknowledgement of Service
In the case of a paper petition, the acknowledgement of service pack contains both an acknowledgment of service form and instructions for completing the form. The respondent must complete and return the acknowledgement within 7 days. In reality, a significant number of respondents do not return the acknowledgement within that time period.
With an online petition, the respondent must login to the online court portal to view the petition and click to acknowledge receipt. It really is a simple process!
Occasionally, petitioners request either a bailiff or a professional process server to formally serve a copy of the petition on the respondent if they do not return either an online or paper acknowledgement. The bailiff or process server will subsequently report back to the court with confirmation of service. This is often one of the major reasons for delay in the divorce process.
When the court eventually receive the completed acknowledgement of service, they will either notify the petitioner online via the court portal or send a physical copy of the acknowledgement to the petitioner allowing them to apply for the decree nisi.
The Application for Decree Nisi
For both the online and paperwork petition, the petitioner must complete both a statement in support of petition (confirming everything they have said in the petition is true) and an application for a decree nisi. In the case of a paper petition, the petitioner must send the documents to the court.
A district judge will consider both the divorce petition and application for a decree nisi. Assuming everything is in order, the judge issues a certificate of entitlement to a decree. The certificate lists the date that the judge will actually pronounce the decree nisi.
Often, this is the longest stage for both online and paper petitions, so patience is a virtue.
In the case of a paper petition, the petitioner will often receive their certificate of entitlement several weeks after it was issued only to note that the court will pronounce the decree nisi a few days later!
The Application for Decree Absolute
Once the court pronounces decree nisi, the petitioner must wait a further six weeks and one day, after which they are entitled to apply for a decree absolute. This is a (sort of) ‘cooling off’ period.
In the case of a paper petition, the application for decree absolute is a straightforward one-page application form. The online application is even simpler with the petitioner clicking to confirm they want to apply for decree absolute.
Once the court receives either the online or paper application, a district judge will look at the divorce file before granting the final decree. Assuming all is in order, the judge pronounces decree absolute and the court will send both the petitioner and respondent a sealed copy of the absolute. This means the marriage is dissolved and the parties are officially divorced.