To obtain a divorce in England and Wales, you need to prove that your marriage has irretrievably broken down. In order to do this, you must prove one of five statutory “facts” to illustrate irretrievable breakdown. They are:
- Your spouse has committed adultery and you find it intolerable to live with them.
- Your spouse has behaved in such a way that you cannot reasonably be expected to continue living with them.
- Your spouse has deserted you for at least two years.
- You and your spouse have lived separately for 2 years and he or she consents to a divorce.
- You and your spouse have lived apart for a continuous period of at least 5 years.
How long will the divorce take?
This depends on several factors. For example, if your spouse is co-operative, the process is likely to take less time. It also depends how quickly the court deals with the documentation. Finally, there is a statutory period of about 6 weeks between the pronouncement of the Decree Nisi and the final decree and this cannot usually be expedited. We normally advise clients that it will take between 4-5 months for the divorce to be concluded.
How do I begin the divorce process?
Once you have decided which of the above statutory examples applies to you, a divorce petition should be drafted. If possible, there should be a period of consultation with your spouse in order to reduce future animosity and delays. It is standard practice to send a copy of the draft divorce petition to your spouse before the divorce proceedings are issued.
We will need your original marriage certificate or certified copy of it in order to issue divorce proceedings. The original or certified copy will be sent to the court and will not be returned once the proceedings have concluded.
Once you have decided which statutory “fact” applies to you for the purposes of the divorce petition, you have to give further information to support that “fact”. In the case of adultery, you will need to provide the dates and the places where the adultery took place. In the case of unreasonable behaviour, you will need to provide at least 4 to 5 examples of such behaviour, including the most recent incident. In the case of desertion, you will need to provide the date of desertion. Finally, in the case of separation, you will need to give the date of separation and brief details of how the separation came about.
What happens once the divorce petition has been issued?
Once a divorce petition has been considered by you and your spouse and has been finalised, it is sent to the court to be issued. Upon issue, the court will send a copy of the sealed petition to you and also to your spouse. This is usually done within 2 to 3 weeks.
Your spouse must then complete a form known as an acknowledgement of service. It should be completed within 8 days from the date the petition was received by your spouse. If your spouse is not prepared to return completed acknowledgement form, you may have to arrange personal service of the documents upon your spouse. It is very unusual for such a step to be taken.
Assuming that your spouse returns the completed acknowledgement of service and confirms that he or she agrees to the divorce petition, you can progress matters further. You can make an application for a Decree Nisi Order. To do this, you must file an application form and statement with the court. Once these documents are approved by the court, they will list this matter for the pronouncement of the Decree Nisi. You would not usually need to attend court for the pronouncement and notification of it is posted to both parties within a few days of it. If the documents are not approved by the court, a letter will be sent to both parties setting out the concerns that the court may have. You are given an opportunity to deal with these concerns and re-submit the application.
The Decree Absolute
About 6 weeks after the pronouncement of the Decree Nisi, you can make an application for the final decree, the Decree Absolute. This is usually dealt with quickly and you should receive the certificate within 1 to 2 weeks. The Decree Absolute dissolves the marriage. If financial matters have not been fully dealt with by this stage, it may be necessary to delay making the application for the Decree Absolute until terms have been agreed. Once the Decree Absolute is pronounced, you should also review your Will as any provision in favour of your spouse automatically becomes void.