13th October 2014
How to get a divorce
When a marriage comes to an end either spouse can start divorce proceedings in England and Wales as long as they have been married for more than 12 months and as long as the English and Welsh courts have jurisdiction to deal with the proceedings.
The process of divorce works as follows:-
- The petition
The Petitioner completes the petition to show the irretrievable breakdown of the marriage based on one of five facts. Either adultery, unreasonable behaviour, desertion, two year separation with the Respondent’s consent or five year separation.
The petition may be sent to the Respondent for approval. The Petition is lodged at Court. This is normally the local Family Court. Since April 2014, the arrangements for children are no longer considered within divorce proceedings so only the divorce petition is filed.
- The acknowledgement of service
The Court issues the petition to the Respondent with an acknowledgement of service form. The Respondent has 14 days from the date of posting to return the acknowledgement of service to the Court, unless the Respondent indicates an intention to defend. It is advisable for a Respondent to obtain advice from a solicitor before completing this document.
The Court then sends the acknowledgement of service to the Petitioner or their solicitor.
- Application for Decree Nisi
The Petitioner completes usually two documents to apply for the Decree Nisi. The first document is a statement which supports the contents of the divorce petition. This statement is made on a prescribed form and allows the Petitioner to address any changes that might have occurred since the original petition was issued such as change of name or address. A copy of the acknowledgment of service is usually exhibited to the statement.
The second document that is completed is the application for a Decree Nisi. This is a prescribed form, which asks the Court to pronounce the Decree Nisi.
The documents are sent to the Family Court. All the divorce paperwork is then placed before a District Judge for consideration. It is the District Judge’s job to look through all the papers and decide whether the Petitioner is entitled to the divorce. In some cases the Judge may ask for further information before proceeding.
- Certificate of Entitlement
Once the District Judge is satisfied that the Petitioner is entitled to the divorce a certificate of entitlement is sent to the parties. This confirms the date, time and place that the Decree Nisi will be pronounced.
There is not normally any need to attend court for the pronouncement of the Decree Nisi. The decision has already been made and there will be no individual reference to the divorce in court. The only time it is necessary to attend is if the Judge has specifically ordered attendance to consider issues such as costs within the divorce.
- Decree Nisi
The Decree Nisi is pronounced by a Judge in open court. A copy of the Decree Nisi is sent to both parties. The Decree Nisi is important as it signals that the divorce has been approved. It is the provisional stage of the divorce and the Petitioner must wait 6 weeks and 1 day before applying for the Decree Absolute which finalises the divorce.
The reason for the Decree Nisi is to confirm that the divorce will take place unless an objection is raised. This rarely takes place. The Decree Nisi does not end the marriage. Therefore if people reconcile within the 6 weeks and 1 day between it and the Decree Absolute, they remain married and the Decree Nisi can be rescinded.
In most cases, once the Decree Nisi is pronounced and 6 weeks and 1 day have passed, the application for the Decree Absolute will be made.
- Decree Absolute
The Decree Absolute application is normally made by the Petitioner on a prescribed form. The earliest this can be done is 6 weeks and 1 day from the date of the Decree Nisi. It can be done earlier but only with the permission of the court and in very exceptional circumstances.
The Respondent can apply for the Decree Absolute 3 months from the first date the Petitioner was able to apply. It is more difficult to apply as the Respondent, as it requires a court hearing.
Sometimes the application will be postponed by the Petitioner if there are financial issues still to be resolved.
Once the Decree Absolute is pronounced the marriage is formally dissolved. A copy of the Decree Absolute is sent to both parties bearing a red court stamp. This has to be kept safe as each party will have to produce it in the future in relation to their martial status.
It is very important to obtain advice from the start from a family law solicitor. The divorce can impact on other matters, especially finances and you need to be sure that you are protected from the start.
We have offices in Birmingham, Derby, Leeds, Leicester, London, Milton Keynes, Nottingham, Sheffield and Gateshead. To contact any of these offices please call 0845 894 1622 or email email@example.com.