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Divorce and Separation
Deciding that a relationship has irretrievably broken down and that the only recourse is separation or divorce is a hugely unsettling and upsetting process.
Our Family Team is there to make the process as pain-free as possible, while ensuring your interests and well-being, and those of your children, are carefully considered. It is not always necessary for a Court to decide matters. When appropriate we will try to help you achieve an agreement through discussion and negotiation. If a court application has to be made though we will ensure your interests are protected and well presented. If divorce is the only way forward, we will provide guidance and support throughout the process. We also provide advice on dissolving registered Civil Partnerships.
CLIENT GUIDE TO DIVORCE
This is a brief guide to explain the procedure for obtaining a divorce and to outline the timescales involved.
Divorce proceedings can only be commenced after the first anniversary of the marriage. The process starts with the issue of a Divorce Petition and finishes when the Decree Absolute is granted. The Decree Absolute ends the marriage and leaves the parties free to remarry if they wish.
Preparation Of The Divorce Petition
The parties in divorce proceedings are referred to as the Petitioner and the Respondent. The Petitioner is the person who starts proceedings by filing the Divorce Petition with the court.
The Petition contains the names, addresses and occupations of the parties, the names and dates of birth of any children, the details of the marriage, and the details of any previous or ongoing proceedings. Additionally, and most importantly, the Petition sets out the reason for the divorce.
There is only one reason or 'ground' for divorce in England and Wales which is that the marriage has irretrievably broken down. The Petition has to satisfy the court that is the case by showing one of the following 5 'facts' exists:
- That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
- That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
- That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition.
- That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent consents to a decree being granted.
- That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.
In the Petition the Petitioner can also ask that the court make an order that the Respondent pays their costs in relation to the divorce. It will also confirm whether the Petitioner is asking for any form of financial order for themselves or any children.
Issuing The Divorce Petition
The Divorce Petition is sent to the court with the original marriage certificate, or a certified copy, a certificate to confirm if reconciliation has been discussed and a court fee of £550. The court then issues the Petition and allocates a case number.
The court then serves the Petition on the Respondent via first class post, together with an Acknowledgement of Service. The Respondent has 14 days to complete and return the Acknowledgement of Service to the court. If the Respondent does not respond within that time the Petition may have to be served by an alternative method, for example by a bailiff.
Once the Petition has been successfully served and acknowledged, and provided that the Respondent does not defend the Petition, the Petitioner can take the next step in the proceedings which is:
Application For Decree Nisi
The Petitioner lodges an application for Decree Nisi and a Statement in Support of Petition which confirms that the contents of the Petition are correct or details any changes that need to be made. A District Judge will consider the contents of the Statement and, if satisfied that the relevant criteria are met, will issue a certificate to confirm this and a date when the Decree Nisi will be pronounced will be set.
A District Judge will announce that the Decree Nisi has been granted in open court on the allotted day. This is the first divorce decree. The Petitioner and Respondent do not need to attend court unless thee are any outstanding issues e.g. regarding costs. The court then sends a copy of the Decree Nisi to both parties. The Decree Nisi does not end the marriage.
The final step in the divorce proceedings is the application for Decree Absolute. The Petitioner can apply to the court for a Decree Absolute 6 weeks and one day after the date of the Decree Nisi is made. The application is sent to the court and the Decree Absolute is usually confirmed within 2 – 3 days. If the Petitioner does not apply for the Decree Absolute the Respondent can make an application 4 ½ months after the date of the Decree Nisi. The procedure for them to do so is more complex than that for the Petitioner and is not covered in this Guide.
It usually takes between 4 and 5 months from the issue of the Petition to the grant of the Decree Absolute. This will, however, depend on the nature of the case and e.g. if there are financial proceedings to be resolved before the divorce proceedings are finalised or delays in the parties doing what is required of them or the court processing matters.
This guide is intended as an outline only of the procedure. For further advice and information please contact any member of the Family Team at Andrew & Co.
To speak to a member of the Family team and make an appointment, please phone us on 01522 512123 (Lincoln) or 01636 673743 (Newark).