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Divorce: The Law Currently

View profile for Pamela Donnellan
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A divorce cannot be issued until the parties have been married for one year. The spouse who commences the proceedings is known as the Petitioner as they “petition” the Judge for a divorce. The spouse who receives the Divorce Petition from the Court is known as the Respondent. This is because this spouse responds to the Petition in accordance with the particular circumstances of each case.

What are the grounds for divorce?

The only ground for divorce in this country is that the marriage has irretrievably broken down. This is proved by the Petitioner establishing the existence of one of five factual circumstances. These are:

  1. Their spouse has committed adultery and they find it intolerable to continue to live with him/her;
  2. Their spouse has behaved in such a way that it would be unreasonable to expect them to continue to live with him/her
  3. Their spouse has deserted them for a continuous period of two years or more;
  4. They have been living apart from their spouse for two years or more and their spouse agrees to the divorce;
  5. They have been living apart from their spouse for five years or more. Consent from the spouse is not necessary in this instance.

What is the procedure for obtaining a divorce?

The Petitioner will need to send the marriage certificate with the divorce petition to the Court. The marriage certificate will be sent to the Judge and the Court will retain it at the end of the proceedings. It will be replaced by the Decree Absolute of Divorce Certificate which indicates that the marriage has been dissolved.

The general procedure for divorce is as follows:

  • The petition, marriage certificate and the court fee (currently £550) are sent to the Court by the Petitioner’s solicitor. In some cases, dependent on your financial circumstances, you may be eligible for some or all of the court fee to be waived;
  • The proceedings will then be issued by the Court and given a case number. The Court will then send a copy of the divorce petition and confirmation that the divorce has been issued to the Respondent directly. The Respondent will also be sent with those papers a form entitled acknowledgement of service and they must complete and return this form to the Court within 14 days indicating that they have received the divorce papers and whether or not they intend to defend the proceedings. If the Respondent does not return the acknowledgement of service within the time limit, the Petitioner can then consider alternative methods of serving the papers on the Respondent, for example, arranging for them to be served personally by a process server or a court bailiff;
  • Upon receipt of the completed acknowledgement of service from the Respondent, indicating that they do not want to defend the proceedings, the Petitioner can then apply for a Decree Nisi. The Petitioner’s solicitor will prepare a statement to confirm that the contents of the petition remain true and correct and that nothing has changed since the original Petition was filed at Court, this will be signed by the Petitioner. It will then be lodged at Court along with the application for Decree Nisi;
  • The District Judge will then consider the divorce petition, acknowledgement of service and the Petitioner’s application for decree nisi and decide whether or not the Petitioner is entitled to a divorce. If satisfied, the Judge will grant a certificate of entitlement which will include a date when the decree nisi will be pronounced;
  • Once the decree nisi has been pronounced the earliest date that the Petitioner can apply for the decree absolute is 6 weeks and one day after the date of decree nisi. If the Petitioner does not apply for the decree absolute at this stage, 4 ½ months later it will be open to the Respondent to make the application for decree absolute. The Respondent’s application would have to be made by giving notice to the Petitioner. 

What happens if the Respondent defends the case?

The majority of divorces proceed on an undefended basis as defending a divorce is a very expensive step to take. However, if the divorce is defended, the position is much more complex. If the Respondent wishes to defend the proceedings, they must file an answer to the petition within the prescribed time limit. The Petitioner is then entitled to file a reply to the answer within 14 days and a case management hearing will be listed by the Court. 

How long does it take to get a divorce?

The time it takes to get a divorce will vary according to the complexity of each case, the practice of the particular court and how quickly the parties complete and return the requisite paperwork. The length can also vary if there are financial matters to resolve. Even the most straight-forward divorces will take between four and six months.

What happens if I change my mind?

It is appreciated that divorce is a big step. Divorce is not the only way and if there are difficulties, but it is felt that the marriage has not irretrievably broken down, then local counselling/mediation services can be approached who could assist with a possible reconciliation.

The Petitioner can stop the divorce proceedings at any time before decree absolute is pronounced. The proceedings can lie on the Court file if you simply wish to take some time to consider your position. Alternatively, in certain circumstances, the proceedings can be dismissed. 

Is the law going to change?

For some time now there has been a feeling amongst some practitioners that the current law could cause or increase conflict and tension between couples. This then has the effect of further damaging relations between them, making it difficult to resolve amicably other important issues arising out of marriage breakdown, such as arrangements for the children or financial matters. 

Under the new law a couple (or one of the parties) will simply need to notify the court that their marriage has irretrievably broken down. The ‘five facts’ mentioned above will be removed and the parties will no longer be able to contest the divorce.

A timescale for the proceedings will be introduced; a minimum period of six months must have elapsed between the petition date and the date of the decree ending the marriage being granted, to allow couples time to reflect on their decision. The changes will also apply to the dissolution of civil partnerships.

We don’t know yet when the changes will be become law. The government has said they will be as soon as parliamentary time allows.

Please note that this article refers to general principles and does not constitute tailored legal advice. Every case is different and there is no substitute for individual legal advice – please refer to your individual client care letter.