Guide to Divorce Procedure
The decision to divorce, or to dissolve your civil partnership, is a major life choice, and it is not one you will take without thinking very carefully. But, once you have made that choice, you will find that the legal process does not question your decision, or ask you to justify it.
The law does not try to establish the real reasons for the breakdown of your marriage, or to apportion responsibility for it.
Getting divorced, or dissolving a civil partnership, is a legal process which involves a court. If it is done right you will not need actually to go to court – it will be done through the post. With help from a skilled divorce solicitor it should take about five or six months from the start of the process, to reach the point where the court office is ready to send you your decree absolute, which is the document confirming that you are no longer married.
Divorce procedure – an overview.
The process involves filling in a series of forms. You do not need your husband or wife’s permission to get a divorce, but his/her cooperation is always helpful.
The Ministry of Justice are piloting a scheme to streamline the courts' administrative system by replacing the paper forms with an online process.
Getting divorced usually costs about £500 or £600 in solicitor’s fees, and you have to pay a court fee of £550 . In theory you do not have to use a solicitor, you can do it yourself. But you would be wise to use a solicitor, particularly if you want to be certain of being divorced reasonably quickly or if financial issues between you and your husband/wife are potentially complicated.
The courts forms look deceptively straight forward. It is easy to make simple mistakes which will cause delay, frustration and expense. Some of those mistakes can cause you serious long-term problems.
You should also be aware that some people have made mistakes in their divorce petition which means that the divorce issued to them by the court office is void. That can cause real problems, and if any of them have remarried their second marriage would also be void.
Starting the divorce – the divorce petition.
To start the process you fill in a divorce petition. Most of the information it asks for is straightforward, such as names and addresses, but you must also specify the basis on which you are asking the court to dissolve your marriage. This can be an important strategic decision. If you get it wrong you may find your divorce does not go through, particularly if your husband/wife resists.
There are five possible bases on which a court may dissolve your marriage, and you state your choice by ticking a box in the petition. The options are:
My husband/wife has committed adultery.
My husband/wife has behaved in such a way that I cannot reasonably be expected to live with her/him.
We have lived apart for two years before the date of the petition, and we both agree to having a divorce.
My husband/wife has deserted me for two years.
We have lived apart for five years.
It is important to understand that the option you choose will make no difference at all to the outcome of any financial dispute between you and your husband/wife. The process does not aim to establish the real reason why your marriage has broken down, and it certainly does not try to apportion responsibility for that between you and your husband/wife.
The person who sends the divorce petition to the court office becomes “the petitioner” and the other person becomes “the respondent. But it makes no real practical difference – the outcome is the same for both.
Choosing the grounds for your divorce.
You need to choose the grounds for your divorce carefully to avoid getting yourself into a difficult position which drags out the process, or even finding that you have to start your divorce again.
The first three options are the most popular. If you and your husband/wife have already lived apart for almost two years, and the decision to divorce is mutual then option three is probably the most appropriate. But if you have only just separated and want or need to have a divorce quite quickly, or if you are not certain that your husband/wife will agree to divorce, then options one or two are likely to be more appropriate.
Option one (adultery) is relatively simple. You do not need to identify the third party involved, or give any particular details. This option is most used by couples who have not lived apart for two years but both agree to have a divorce because, although you may know that your husband/wife is in a relationship with someone else, it will be very difficult to prove actual adultery unless s/he is willing to make a formal admission.
Option two (unreasonable behaviour) is the default option for many. It is appropriate if you have not lived apart for two years and neither of you has formed a new relationship, or if you are not confident that your husband/wife will cooperate. You will need to give some examples of your husband/wife’s unacceptable behaviour. They need not be particularly serious. A few complaints about your domestic arrangements and his/her irritating habits will usually be sufficient if the petition is well drafted by a skilled solicitor. The best strategy is not to make complaints which will particularly upset your husband or wife, but you need to ensure that it is accepted by the judge who considers your request for a divorce, and also that it will achieve a divorce for you in the perhaps unlikely scenario that your husband or wife decides to defend.
When can I start my divorce?
The court rules say that you must send the draft divorce petition to your husband/wife before you send it to the court office, so that s/he has opportunity to comment on it. Usually a few days is sufficient. You then send it to the court office, where the staff will eventually date stamp it and post it onto your husband/wife.
You can’t send it to the court until you have been married for a year.
Your husband/wife will receive the petition through the post from the court office. It comes with a fairly simple form called an “acknowledgement service”. Essentially the form invites him/her to confirm receipt and to confirm a few simple points. It is usually best if he/she takes advice from a solicitor at this stage, so that he/she can understand the documentation and, hopefully, feel comfortable with the process.
Hopefully s/he will then send the form back to the court office. If s/he doesn’t, the process becomes slightly more complicated and expensive, but your solicitor will be able to guide you.
If you are the recipient of a divorce petition from the court office you should contact us for advice quickly. We can advise you about how you should respond to the petition, and we can also give you early advice about other issues, particularly financial questions, which could have a serious long-term impact.
Applying for decree nisi.
The court office will send you a copy of the acknowledgement of service form, and the next step is to complete another form which can be quite technical, asking the judge to approve your divorce. It needs to be filled in with particular care. The judge then checks the paperwork, and assuming everything is in order, s/he issues a certificate of approval, and notifies you of a date for decree nisi.
At the decree nisi the judge will, literally, pronounce your divorce in a courtroom, along with many other people’s divorces. You are not expected to go to court yourself for this, and the court room is generally empty. You will receive the decree nisi with a short explanatory note through the post.
Applying for decree absolute.
Six weeks after the date of decree nisi you can apply for decree absolute, which is the document which finally dissolves your marriage. The application for decree absolute is quite simple, and it is usually processed within a couple of days.
If you were the respondent to the petition, and your husband/wife gets a decree nisi but does not apply for decree absolute you may do so. You have to wait four and a half months from the date of the decree nisi. It is a more complicated court application which involves a court hearing before the judge, who will decide whether the decree should be granted. You need to be sure your application will be successful, so you should seek advice before taking that step.
Once you have your decree absolute you are each free to remarry. If you were the respondent, or if you drafted your own petition without proper legal advice, you can seriously damage your financial position by remarrying. So you should seek proper advice from an expert solicitor before doing so.
It may be wise to postpone your application for decree absolute, particularly if financial issues between you and your husband/wife have not been properly resolved by that stage. You should take advice about this.