Divorce procedures

UK Divorce procedure

Divorce is a legal process, which is carried out by the civil courts. The procedure begins with a petition and ends with a decree absolute, which dissolves the marriage. The timescale to complete the process differs from case to case but is usually between four to five months.

The purpose of this factsheet is to provide a broad outline of the divorce process and to deal with some of the most frequently asked questions.

When can a divorce petition be issued?

You cannot issue a divorce petition unless you have been married for more than one year.

On what basis can a divorce petition be issued?

By establishing the existence of one of five factual circumstances. These are:-

(a) Your spouse has committed adultery and you find it intolerable to continue to live with him/her.

(b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.

(c) Your spouse has deserted you for a continuous period of two years or more.

(d) You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.

(e) You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.

It is no longer compulsory in a petition based on adultery to name the third person concerned.

Does the basis of the divorce have to be agreed?

No. However, it might be a good idea for you or your solicitor to establish whether or not there is likely to be any opposition to the petition before it is actually issued at court. As a matter of good practice, a draft of a petition based on behaviour should usually be sent to the other spouse concerned so that an agreement can be reached over the particulars to be cited.

Will I need to attend court?

You will usually only need to attend a hearing dealing with the divorce if the proceedings or the costs are contested.

Are the divorce proceedings held in public?

No. The press are able to publish the fact that a decree nisi of divorce has been pronounced, but rarely do so.

When are financial issues dealt with?

Negotiations in relation to financial arrangements for the future can take place at any time before, during or after the divorce. It is usually not necessary for negotiations to have been completed before the divorce can be finalised.

Timetable of Proceedings

1: Issue of the petition

The spouse who starts the divorce is known as the ‘Petitioner’. The other spouse is known as the ‘Respondent’. If a third person is named in a petition based on adultery, that person is known as the ‘Co-Respondent’. The divorce starts when the following papers are sent to the court:-

(a) Divorce petition.

(b) Statement as to advice given on reconciliation.

(c) Marriage certificate.

(d) Court fee (£410) unless the Petitioner is exempt from paying such fees.

2: What happens next?

The court or the Petitioner’s solicitor sends by post a copy of the petition to the Respondent or his/her solicitor, together with a form of acknowledgement for him/her to complete (known as the ‘acknowledgement of service’). A copy of the petition is also sent to any Co-Respondent.

3: What must the Respondent do once he/she receives the divorce papers?

The Respondent must complete and return to the court the acknowledgement of service within eight days of receipt of the divorce papers. The form asks the Respondent whether he/she:-

(i) Agrees with the basis of the court’s jurisdiction.

(ii) Intends to defend the petition.

(iii) Objects to paying any costs claimed.

The eight day time period starts on the day after the Respondent receives the divorce papers. Longer time limits apply where the Respondent lives outside England and Wales.

4: What happens if the Respondent wishes to defend the divorce?

The Respondent must file a defence (known as an ‘Answer’) within 29 days of receipt of the divorce papers (longer time limits apply where the Respondent lives outside England and Wales). The petition then becomes defended and the remaining procedure outlined below no longer applies. Defended divorce proceedings rarely result in a fully contested hearing. It will however inevitably take longer to finalise the divorce.

5: What happens where the Respondent does not wish to defend the divorce?

The court will send a copy of the Respondent’s acknowledgement of service to the Petitioner’s solicitor who then prepares an the papers required to take the divorce to the next stage. These papers are sent to the court with a request for a date for pronouncement of the provisional decree of divorce (known as the ‘decree nisi’).

6: What happens if no acknowledgement of service is returned to the court within the time limit?

The Petitioner will need to prove that the Respondent and any named Co-Respondent have received the divorce papers. This may require a duplicate set of the papers being sent to the Respondent by recorded delivery or arranging for someone to deliver the papers to the Respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the Respondent has received the divorce papers, the court may make an order dispensing with the need to effect service.

7: How does the court deal with the Petitioner’s application for a date for pronouncement of the decree nisi?

The judge looks through the papers and decides whether the Petitioner is entitled to a divorce. If so, the judge certifies that a decree nisi should be pronounced. Both the Petitioner and the Respondent (usually through their solicitors) are informed by the court of the date on which the decree nisi will be made. This is usually a couple of weeks after the judge issues his certificate. The couple do not need to attend court for the pronouncement.

8: When can the Petitioner apply for the decree absolute?

The Petitioner can apply for the decree absolute six weeks and one day after the decree nisi was pronounced. The application is made on a standard court form and is usually processed within a couple of days. You will need to discuss the timing and impact of the application with your solicitor before it is made.

9: Can the Respondent apply for the decree absolute?

If the Petitioner does not apply for the decree absolute, the Respondent may make a similar application, but will need to wait a further three months after the date on which the Petitioner could have first applied (ie six weeks and one day plus three months). The application is not granted automatically and usually requires attendance at court.

For further information contact Carol Maher (Solicitor & Mediator; Member of Resolution & Law Society Family Panels)