Divorce lawyers are under a duty to promote reconciliation where this is possible. We take this seriously. If there is still a chance of saving your marriage, consider making an appointment with RELATE or ask us for a more specialist referral.
Our view is that where a couple are definitely not going to become reconciled, it is often better for the divorce to take place sooner rather than later. This is a generalisation and, because of the very personal nature of divorce, there will often be exceptions to it.
What can sometimes be said in favour of divorce is, first, that it is a clear message (and children are said to benefit from these), secondly, that for many it represents the moment when they stop looking backwards and start to plan for the future and, thirdly, that it enables them to make use of the law’s procedures to record agreements in a binding way or to resolve financial issues, if necessary.
For many, a divorce based on two years’ separation is a good way forward; for others, the period of waiting makes them feel that they are ‘in limbo’ and they cannot move on in their lives. They do better to consider a divorce based on one of the grounds that may be available without any period of separation.
Divorce - grounds
Technically there is only one ground for divorce: that a marriage has broken down irretrievably. This must be then established by proving one of five facts:
- that the other has committed adultery:
- that the other has behaved unreasonably;
- 2 years separation at the end of which the other consents;
- that the other has deserted you for 2 years; and
- 5 years separation.
No one can start divorce proceedings until they have been married for one year.
Divorce can be a miserable process but it is one that can be dealt with as pleasantly and considerately as possible:
- adultery - you do not have to name the third party; you can do so if you wish but Courts discourage this
- unreasonable behaviour - we aim not to cause unnecessary offence when drafting the allegations which can be quite brief and simple and can be agreed by both parties in advance.
Before starting divorce proceedings it is very important to be certain that the Courts of England and Wales have the jurisdiction to deal with the divorce proceedings; this does not usually cause any problems but some complex rules apply where there is an international aspect to a marriage that has broken down.
Divorce – procedure and timescale
The person who starts the divorce proceedings is called the Applicant; the other party is called the Respondent. Before the new Rules, the person starting the divorce proceeidngs was called the Petitioner; we think the term 'the Applicant' will become widely used and we have adopted it throughout this website. The new Rules refer to 'a matrimonial order' rather than to 'divorce'. We think the term 'divorce' will remain in common use. We think the terms 'Decree Nisi' and 'Decree Absolute' will also continue to be used if only because they are widely understood and are less cumbersome than the terms used in the new Rules which are 'Conditional Matrimonial Order' and 'Absolute Matrimonial Order'.
- The Applicant's Solicitor prepares the Divorce Petition.
- The Court sends the Divorce Petition to the Respondent.
- The Respondent completes the Acknowledgement of Service and returns it to the Court within 7 days (longer if living abroad): this is the only step the Respondent has to take.
- The Court sends the Acknowledgement of Service to the Applicant’s Solicitor who prepares a sworn statement in support of the Applicant’s application for the Decree Nisi.
- The Applicant swears the statement and sends it to the Court.
- The Judge issues a Certificate fixing a date for the Decree Nisi.
- The Decree Nisi is pronounced - no one needs to attend Court.
- 6 weeks after the Decree Nisi the Applicant may apply for the Decree Absolute - but will often choose not to do so immediately if a financial settlement has not been achieved.
- 3 months after the Applicant could have applied for the Decree Absolute, the Respondent may do so but the application may fail if there is no financial settlement.
Most divorces take about 4 months from start to Decree Absolute.
Divorce – cost
In a routine case for the Applicant - about £500 + VAT + Court fees of £385 (£340 for filing the petition and £45 for the Decree Absolute) – the Applicant may apply for an Order that the Respondent pays all or some of the costs; the Court’s approach is inconsistent and it is virtually impossible to predict if the application will succeed.
In a routine case for the Respondent - about £200 + VAT.
Nullity and other rarities
Finally, a brief mention of Nullity. A party to a marriage may petition for Nullity on various grounds which mostly centre on a lack of capacity or consent at the time of the marriage or a wilful refusal or inability to consummate a marriage. The marriage is then treated as though it had never taken place, although it may give rise to financial claims similar to those that arise on a divorce. Lawyers learn about this in great detail for exam purposes but rarely encounter cases in practice.
Even more rarely do we encounter cases where someone has disappeared and the Court is asked to make a Decree of Presumption of Death and Dissolution of Marriage or where the Queen’s Proctor is involved in re-instating a marriage when a divorce has been obtained on false pretences.
