8 September 2020
Once a marriage has irretrievably broken down, the prospect of going through a divorce can seem very daunting.
In this article, Chris Hawkes, who is a trainee solicitor working in the Family Law team at Phillips, sets out the divorce process, which will bring your marriage to an end.
Under the current law in England and Wales, you can only apply for a divorce if you have been married for at least one year. There is only one ground for divorce: that the marriage has broken down irretrievably and the Court can only make a finding of irretrievable breakdown if it is satisfied that one of the following factors exists:
- Unreasonable behaviour
- Two years’ separation with consent, or
- Five years’ separation.
If your spouse is satisfied that one of the above reasons exist (the most common being adultery and unreasonable behaviour), they may start divorce proceedings.
Application for a petition
The first step is to make an application for a petition. The person making the application is called the Petitioner and the other spouse is called the Respondent.
The petition is a standard form, called a Form D8, and must contain a statement of case, which provides evidence to show why the applicant is entitled to a divorce. The contents of the statement of case are usually agreed between you and your spouse before it is filed at Court.
Proceedings commenced in the Family Court
Proceedings are commenced in the Family Court, to which the following should be sent:
- The petition
- The original marriage certificate (or a certified copy), and
- Either the Court fee (£550) or an application for an exemption from fees.
Once the Court has received these documents, it will then serve the following on the Respondent:
- A copy of the petition
- Notice of proceedings, and
- An acknowledgement of service form.
On receipt of these documents, the Respondent must complete and return the acknowledgement of service form within seven days, starting with the date on which the petition was served.
Most divorces proceed undefended and, if the Respondent has no intention of defending the divorce, that may be the end of their part in the process. Defended divorces are costly and, therefore, rare.
If the application is not defended, the Applicant then makes an application for Decree Nisi, which basically confirms that the person seeking a divorce is entitled to bring the marriage to an end.
This is done using a form called a Form D84, which must be accompanied by a statement, verified by a statement of truth, that contains certain prescribed information. If the Court is satisfied that all procedural requirements have been met, it will direct that the application be made for the making of the decree.
At this stage, the evidence is considered. If the Court is satisfied that the contents of the petition have been sufficiently proved, and that you are entitled to the decree of divorce, the District Judge will certify that this is the case and, if appropriate, will also consider the position as to costs. The Court will then notify both sides as to the time, date and place for the pronouncement of the Decree Nisi.
Pronouncement of the Decree Nisi
The pronouncement of the Decree Nisi is normally a formality. Unless you or your spouse wishes to be heard on costs, it will generally not be necessary for your legal representatives to be present. Decree Nisi is the second-to-last phase of a divorce. It means the Court has decided that you are entitled to a divorce, albeit that the divorce has not yet been made final.
At any time after the Decree Nisi has been pronounced, the Court is able to make a binding financial order setting out arrangements for finances and property on divorce – either by consent or following separate Court hearings.
If you have obtained the Decree Nisi, you may apply to have the decree made absolute six weeks and one day from the pronouncement of the Decree Nisi. This is done by lodging a form called a Form D36. If you are entitled to apply, but do not do so, your spouse (the Respondent) may apply for a Decree Absolute On Notice, i.e. by letting you know of their intention to do so, three months and one day after the day on which the petitioner could first have applied.
Providing certain conditions have been satisfied, the Court must make the Decree Absolute. A certificate will then be sent to you the Petitioner and your spouse, the Respondent. The Decree Absolute is the final decree; once it has been granted, the marriage has come to a legal end.
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This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.
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