Divorce: your questions answered
How can I get divorced?
You need to be married for at least one year and be habitually resident in England and Wales. If you are not habitually resident here then both you and your spouse will need to be domiciled in England and Wales.
There is only one ground for divorce known as the irretrievable breakdown of the marriage, which is proved by one of five grounds (see below).
To start the divorce process you will need to obtain your original marriage certificate and file a petition at court citing one of the five grounds. There is a court fee of £410 to pay (January 2015).
The court will issue your petition, and your spouse must then complete the acknowledgement of service within a specified timeframe.
Providing this has been completed, you can apply to court for your decree nisi.
A judge will then consider your divorce petition and confirm that you are entitled to a divorce, listing a date for the pronouncement of decree nisi. This is the first of two decrees. It is at this stage that the court can approve any financial agreement reached between the parties.
Six weeks and one day following decree nisi, you can apply for decree absolute. This is the final decree, and legally ends your marriage.
The above is based on a typical undefended divorce. There can be complications if, for example, your spouse doesn’t return the acknowledgement of service, or decides that they wish to petition against you.
What are the grounds for divorce?
In order to obtain a divorce you must show the court that the marriage has ‘irretrievably broken down’. To do this you must demonstrate to the court that one of the following five specific circumstances exists:
- Unreasonable behaviour,
- Two year separation,
- Five years separation
- Two year desertion.
There is no such thing as ‘no fault’ divorce in England and Wales currently, although this is something that the Law Commission are going to review.
What is adultery?
Adultery is an act of sexual intercourse with person of the opposite sex to whom you are not married. It is a specific circumstance that may be used to prove to the court that your marriage has ‘irretrievably broken down’. You can commence divorce proceedings immediately on this basis.
In order for you to rely on an act of adultery, it must have taken place no more than six months before you found out about it. It is no longer necessary to name the person with whom the adultery took place or indeed to involve them in the court proceedings.
What is unreasonable behaviour?
Unreasonable behaviour is where you consider your spouse or partner has behaved in such a way that you cannot reasonably be expected to continue to live with him or her. It is a specific circumstance that may be used to prove to the court that your marriage has ‘irretrievably broken down’. You can commence divorce proceedings immediately on this basis.
The test for what is or is not unreasonable is subjective and the court will consider what is unreasonable to you personally. The behaviour need not consist of violence, drug or alcohol addiction or other extreme behaviour. A combination of less obviously unreasonable behaviour can be sufficient.
What is desertion?
Desertion means that your spouse or civil partner has left you without your agreement and without good reason. It is a specific circumstance that may be used to prove to the court that your marriage has ‘irretrievably broken down’.
In order to rely on this fact, you need to establish the following.
- You no longer live with your spouse or partner and have not lived with them for a continuous period of 2 years immediately before the petition is filed at court.
- You did not consent to the separation.
- It is the intention of your spouse or partner to permanently stop living with you.
- Your partner or spouse does not have a reasonable cause for wishing to stop living you.
Desertion is rarely used as a fact to support the irretrievable breakdown of a marriage or civil partnership as it is not easy to prove and often another fact can be used in its place.
If my marriage has broken down do I have to divorce?
No. There are other options if you are not sure whether you want to end your marriage.
What are my options other than divorce?
Separation on an informal basis
You and your spouse make the decision to separate and agree between you what financial arrangements are going to be in place during your separation.
Separation supported by a separation agreement
This is an agreement drawn up by solicitors which sets out the agreed financial arrangements for the period of separation.
The agreement would usually set out how you would like your finances should be divided should you decide subsequently to divorce. On a subsequent divorce, the court is not obliged to follow the terms of the agreement, but it is a factor the court would take into consideration.
This is a formal separation recognised by the court. The process is similar to the divorce process, in that a petition for judicial separation is submitted based on one of the same five facts as divorce, as set out above, however you do not have to prove that the marriage has irretrievably broken down.
A decree of judicial separation does not end the marriage. The court is able to make many of the same financial orders that can be made on divorce, save that it cannot make orders in relation to pension sharing. A decree of judicial separation removes the obligation on you and your spouse to remain living together.
Applications for judicial separation are rare, and may often arise where there are strong cultural or religious reasons for not wishing to divorce.
Can we be separated and live under the same roof?
Yes. To be legally separated for the purposes of divorce/dissolution of a civil partnership, all you have to show is that you and your spouse or partner are ‘living apart’. Even if you and your spouse or civil partner are living under the same roof, you can be ‘living apart’ if you maintain separate households and lead completely separate lives.
However, most judges are reluctant to believe that a separated married couple living under the same roof have led completely separate lives.
Living apart under the same roof can be evidenced by the fact that you and your spouse or partner no longer do the following:
- Sleep together
- Cook and eat together
- Watch television together
- Carry out domestic chores such as cleaning, washing and ironing for one another
What is a divorce/dissolution petition?
The petition is the document used to apply to the court in order to start divorce or dissolution proceedings. It contains basic details of you and your spouse/partner. It also specifies the date that you were married/formed a civil partnership and sets out the specific circumstance that you will be relying on to prove the irretrievable breakdown of the marriage.
What is decree nisi?
Decree nisi is the first stage of the two-part divorce order which culminates in decree absolute. It means that the court is satisfied that you (if you are the petitioner- the person who applies for the divorce) have proved the contents of the petition and is entitled to a divorce. It confirms that the court does not see any reason why you cannot divorce.
What is decree absolute?
This is the final court order in divorce proceedings . It means that your marriage is legally at an end and you are both free to remarry. You need to wait at least 6 weeks after the date of the decree nisi before you can apply for a decree absolute. The delay is a ‘cooling off period’ which gives you a chance to discuss other issues such as your finances with your spouse before the marriage formally comes to an end.
How long does divorce take?
Typically, a straightforward, undefended divorce takes between 4 to 6 months from issuing the divorce petition at court to obtaining the decree absolute. Other than the compulsory delay of 6 weeks between decree nisi and decree absolute, it can take some time for the court to process the paperwork and for your spouse to return the documentation required. This period can therefore take less time if your spouse cooperates and the court deals with the paperwork efficiently.
What can I do if my partner is violent?
The law is very clear that violence should never be a feature of any relationship and those who are violent to their husband, wife or partner will be committing a criminal offence by behaving in that way.
If you are suffering violence from your husband/wife/partner, you should call the police. There are also a number of organisations that give help and support to those suffering from violence in the home as victims of violence often feel as if they are trapped and powerless to help themselves.
The family court is also able to make an injunction order either prohibiting a spouse or partner from being violent or removing a violent partner from the home. You can always talk to our family lawyers to discuss your situation.
Will I get to keep the house on divorce?
This will depend on the financial needs, responsibilities and resources of you and your spouse. Often, the family home is the main asset of the marriage, and sometimes there is not enough equity in the property to house both parties.
The court’s first consideration is the welfare of any children of the marriage. In this circumstance, the primary carer of the children often stays in the property until the youngest child finishes full time education at which point the house is sold and the net proceeds of sale is split between the parties. If the house is bigger than your need, and there are sufficient assets elsewhere to house your spouse, then it may be possible to retain the family house.
However, if there are not sufficient assets then the house may have to be sold. Our expert family solicitors can advise on the best strategy to try and keep your house if that is what you want.
How will my business be considered in divorce?
A business is not automatically protected on divorce and is treated as a matrimonial asset.
The first step is to ascertain the value of the business before working out how to deal with it in the context of a divorce. This can be done by jointly appointing an accountant. The business is a capital asset and also an income source.
The family court tends to leave the business with the owner and compensate the other spouse with other capital resources of the marriage/and or spousal maintenance.
The aim of the court is to distribute the resources of the marriage fairly.
How is the house dealt with in divorce?
On divorce, the house is considered a matrimonial asset. The court will consider the housing needs of any children first. If the family home meets the needs of the children, the primary carer generally stays in the house until the youngest child reaches 18.
Sometimes the house is transferred outright to the spouse if there are sufficient assets elsewhere to meet the other spouse’s housing need. If there are not sufficient assets to house the non-resident spouse, then the house is transferred into the spouse’s name and the non-resident spouse has a charge over the property.
If the house is more than the needs of the children and the primary carer, then the house is usually sold and the net proceeds of sale are divided taking into account the children’s housing needs first.
What happens to my children in divorce?
The family court does not become involved with the arrangements for children unless you and your spouse cannot agree on where the children live and how the children spend time with you. The court encourages parents to try and agree the arrangements for the children directly or with the help of mediation.
Other issues that arise between parents include choice of school, medical treatment, relocating abroad or the child’s surname, which if they cannot be resolved directly, you can apply for an order from the court.
When the court considers an application relating to a child, the most important consideration is the child’s welfare and what is in their best interests.
If you have a question that isn’t here or would like to speak to one of our family solicitors, then do get in touch with Alex Davies on 01892 506 326 or firstname.lastname@example.org