Divorce
In England and Wales there is only one ground for divorce which is the irretrievable breakdown of the marriage. This needs to be proved by reliance on one of five grounds which are as follows:
- That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
- That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
- That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately before the start of the divorce.
- That the parties to the marriage have lived apart for a continuous period of at least two years immediately before the start of the divorce and the Respondent consents to a Decree being granted.
- That the parties to the marriage have lived apart for a continuous period of at least five years immediately before the start of the divorce.
Who can file for divorce?
Anyone who has been married for at least a year can file for divorce provided that one or both of the parties are domiciled or in residence in England and Wales during the whole of the preceding year. It is not relevant where the couple were married.
Common terms in divorce proceedings
| Petition | this is the person who issues the divorce proceedings |
| Respondent | this is the person against whom the proceedings are issued |
| Co-Respondent | in an adultery petition the party with whom the Petitioner alleges the Respondent has committed adultery is the Co-Respondent |
| Statement of Arrangements | this is a detailed form which must be completed by the Petitioner in the event that there are relevant children and it covers all aspects of the care of the children |
| Acknowledgement Of Service | this is the form sent by the Respondent (and Co-Respondent if relevant) to the Court acknowledging receipt of the divorce papers. The Respondent will indicate whether or not he/she wishes to defend the proceedings and, in the case of an adultery petition, whether he/she admits the adultery |
| Affidavit | this is a formal sworn document providing written evidence. It can be sworn either in front of a solicitor or an Officer of the Court. |
| Decree Nisi | this is the provisional dissolution of the marriage |
| Decree Absolute | this is the final dissolution of the marriage |
Procedure
In the event that there are relevant children the Statement of Arrangements for Children is completed by the Petitioner and sent to the Respondent for agreement prior to the petition being issued. Additionally, the divorce petition is sent to the Respondent, again to try and secure agreement as to it's content in advance of it being issued.
Thereafter the divorce petition and Statement of Arrangements for Children is filed at Court together with the original marriage certificate and the Court fee. The papers are then sent by the Court to the Respondent (and Co-Respondent if applicable) and the Respondent then returns the Acknowledgement of Service to the Court confirming either that he/she has no intention of defending, or, alternatively, that there is an intention to defend.
Assuming that there is no intention to defend, the Petition then swears an Affidavit in support of the divorce petition asking for the case to be set down in the Special Procedure List and also making a request for Decree Nisi.
The Court will then check that all the rules have been complied with and list the matter for pronouncement of Decree Nisi. The Court will also give a Declaration in respect of any relevant children. Ordinarily, unless there is any dispute as to costs, there is no need for either party to attend the pronouncement of the Decree Nisi.
Six weeks and one day after the pronouncement of the Decree Nisi the Petition can apply for the Decree Absolute. If the Petitioner does not apply, then the Respondent can apply for Decree Absolute three months after the date that the Petitioner could have done so.
Children
Generally when a couple are contemplating separation or divorce the most overwhelming issue of concern is what will happen in relation to the children in terms of where they will live and how they will see both their parents.
Ideally we would encourage parents to work closely together and to co-operate in ensuring that the arrangements for the children are agreed and are in their best interests. This will enable the children to feel more settled notwithstanding the divorce and separation procedure.
Basically there are no rules as to what is the right or wrong approach in relation to the children. A negotiated agreement is far more likely to work in the long term and our interest is to try and help you achieve an agreement that works for you and the children in a negotiated and settled way. We could also refer you to mediators who act on a collaborative basis (see our fact sheet on mediation) if that is appropriate to your particular circumstances.
Unfortunately not everybody is able to reach agreement on the arrangements for children. For those that are able to, then no orders are made in relation to the children. There are no such concepts as custody and access any more and in the event that agreement is reached this is documented in the Statement of Arrangements for Children which is filed at Court with the divorce petition in the case of divorce and provided the Court is sure that the arrangements are satisfactory in relation to the children then no order is made.
If, however, you are not able to reach agreement, then it is possible to make an application to the Court to ask the Court to consider issues in relation to the children.
The main piece of legislation dealing with disputes relating to children is the Children Act 1989. This sets out that what used to be called custody and access are now known as residence and contact. The Children Act makes it clear that the child's welfare is the paramount consideration when the Court considers any question in relation to the upbringing of the child. Furthermore the Court will also consider what is known as the welfare checklist. This includes:
- The wishes and feelings of the child considering the light of his/her age and understanding
- The physical, emotional and educational needs of the child
- The age, sex, background and any characteristics which the Court considers relevant
- The likely effect of any change in the child's circumstances
- Any harm which the child has suffered, or is at risk of suffering
- How capable is each parent of meeting the child's needs
The contents of this fact sheet are general principles and do not constitute legal advice. Every case is different and you should seek independent legal advice in relation to your specific circumstances.