Coming to terms with the breakdown of your marriage can be upsetting, emotional and stressful. Separating from your spouse is a very significant life event so when you are ready to commence divorce proceedings, a solicitor should help to make it as simple as possible.
Grounds for a divorce
There is only one legal ground for divorce, which is that the marriage has irretrievably broken down. The person who starts proceedings (the "Petitioner") must prove that the marriage has irretrievably broken down by establishing one of the following five facts:
- Adultery – Your spouse has committed adultery and you find it intolerable to live with them.
- Unreasonable behaviour – Your spouse has behaved in such a way that you cannot reasonably be expected to live with them.
- Desertion – Your spouse has deserted you for a continuous period of at least two years immediately preceding the presentation of the petition.
- Two years' separation with consent – You and your spouse have lived apart for a continuous period of at least two years and your spouse consents to a decree being granted.
- Five years' separation (no consent required) – You and your spouse have lived apart for a continuous period of at least five years.
A divorce cannot be applied for until a couple has been married for at least one year. Divorce proceedings are started by filing a divorce petition at Court.
Step One - Drafting and filing your divorce petition
Even if you are both in agreement that you want to get divorced, it is only one of you who files a petition with the Court to ask for the divorce. The petition will state the grounds for the divorce, and, once your solicitors have they information they need, a D8 divorce petition will be drafted and sent to you for approval. When you have approved it, it will be sent to your spouse / their solicitors, giving them 14 days in which to respond.
Next, the petition will be sent to the Court, so that it can be issued and sent to your spouse / their solicitor. This is officially known as ‘serving the petition on your spouse’ and can take around two weeks for the Court to process the documents.
Step Two - Acknowledging service
Your spouse, or their solicitor, has 14 days in which to complete a D10, Acknowledgement of Service and return it to the Court. This is the moment he/she will indicate whether they intend to defend the divorce or whether they agree to pay any claim for divorce costs. In the event that your spouse refuses or fails to complete the form, it will be necessary to consider steps such as arranging for a process server to formally serve them with the papers so that the Court will allow your divorce to proceed.
Step Three - Applying for Decree Nisi
Your Decree Nisi certificate confirms that the grounds for the divorce have been proved. To get to this stage involves completion of a D84 application form, which your solicitor will prepare, together with whichever statement in support is applicable. The exact form used depends on which of the five facts you have relied upon in your petition.
The forms will be submitted to the Court on your behalf and the Court will then review these documents and decide whether or not to grant the Decree Nisi. Form D84a will be received by your solicitor from the Court approximately four weeks later, setting out the date that your Decree Nisi will be pronounced.
Step Four - Decree Nisi
The Court will send the Decree Nisi to your solicitor. The Court is then able to approve any Consent Order setting out the financial agreement reached with your spouse. The matrimonial finances are not automatically resolved as part of the divorce proceedings and we advise you and your spouse to try and resolve matters amicably, possibly through mediation, collaborative law or solicitor negotiations. It is preferable for the finances to be resolved before applying for Decree Absolute so as to ensure that your position is not adversely affected, for example, in relation to pension rights.
Step Five - Decree Absolute
You can apply for Decree Absolute no sooner than six weeks and one day after you have received your Decree Nisi. This is the certificate which formally dissolves your marriage.
This article was written and contributed by Kristie Rhodes of WSP Solicitors
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to WSP Solicitors directly.
Published on 24th July 2018
(Last updated 29th August 2018)