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 Petitioner; the other party is called the Respondent. The court rules now refer to a 'matrimonial order' rather than a divorce; nonetheless people continue to use the old terminology.
- The Petitioner's solicitor prepares the Divorce Petition.
- The Court sends the Divorce Petition to the Respondent.
- The Respondent completes the form of 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 Petitioner’s solicitor who prepares a statement in support of the Petitioner’s application for the Decree Nisi.
- The Petitioner signs 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.
- Six weeks after the Decree Nisi the Petitioner may apply for the Decree Absolute - but will often choose not to do so immediately if a financial settlement has not been achieved.
- Three months after the Petitioner 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 four months from start to Decree Absolute. This can however take longer if there are significant delays at the court.
Divorce – cost
In a routine case for the Petitioner - about £550 + VAT + Court fees of £550 – the Petitioner 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 willful 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.