Guide to divorce
Separation is tough, and the decision to begin divorce proceedings is one of the most difficult decisions to be made, but it can also mean a new beginning.
The divorce process is largely a paper exercise by which the court is asked to agree to the end of the marriage; the information below gives you an idea of the things you need to consider in order to proceed with a divorce or separation, and the process involved.
What's the difference between separation and divorce?
Separation doesn't require a formal legal arrangement, but it is advisable to reach agreement on key issues relating to child care and financial arrangements which can be incorporated into a separation agreement or deed of separation, organised by your solicitor. It is important to realise that any document around separation may be relied upon if a divorce takes place at a later date. (Article: What are Separation Agreements?)
Divorce involves court and demonstrates that the marriage has irretrievably broken down. This means that either one or both of you feel that you are unable to stay married to each other.
An uncommon alternative to divorce is a judicial separation however this is generally only considered when there are religious objections to divorce. This difference is that whilst you no longer have any legal duty to live together you cannot remarry.
42% of marriages in England and Wales end in divorce, with 34% of marriages expected to end in divorce by the 20th wedding anniversary*
Grounds for divorce
You are only able to file for a divorce if you've been married over a year, otherwise you have to demonstrate to the court that the marriage has irretrievably broken down and that either one or both of you are unable to stay married to each other. The application to the court is called a Petition and the spouse who files the Petition is called the Petitioner, whilst the other spouse is called the Respondent.
In order to prove that the marriage has irretrievably broken down, one of the following things must be proved:
- Adultery: your spouse has committed adultery and you find it intolerable to live with them. In most cases adultery is proven through admittance, if there is no proof of adultery you will need to speak to your solicitor. (Article: Adultery - no longer the primary ground for divorce)
- Unreasonable behaviour: this can include mental or physical cruelty, violence and abuse, or psychological issues such as dominating a partner or not letting them leave the house or speak to people. Unreasonable behaviour is about your spouse behaving in such a way you can no longer reasonably be expected to live with them. Unreasonable behaviour is subjective and is based upon what you believe to be unreasonable about your spouse's behaviour.
- Desertion: your spouse has deserted you for more than a period of two years; leaving a husband or wife without his or her agreement or good reason.
- Two years' separation: you have lived separately from your spouse for more than two years and you both consent to divorce (no-fault divorce).
- Five years' separation: you have both lived separately for more than five years, mutual consent is not needed for this.
Britain has the highest divorce rate in the European Union (source: EU's Eurostat statistical office in Luxembourg, 2014)
Your divorce solicitor
It is strongly advisable for each spouse to use a solicitor in divorce proceedings. Divorce solicitors are able to:
- Advise you on your rights and reasonable financial settlements and spousal maintenance (Article: Divorce and asset concealment)
- Help you negotiate agreement on financial arrangements for children (Article: Understanding co-parenting legal issues)
- Help you negotiate agreement on the arrangements for the children at the conclusion of the divorce
- Ensure court documents are correctly completed and filed on time
16% of marriages reach the 60th wedding anniversary
How long does the divorce process take?
The divorce process largely depends on how your spouse behaves and how busy the courts are. The dissolution of marriage generally takes between four and six months but this also depends on whether finances have been resolved, the assistance of a solicitor can help with any disputes that may arise. (Article: What lessons can be learned from the Young divorce saga)
Divorce is concentrated in the early years, peaking between years three and six. There has never been any evidence for a "seven year itch"**
What needs to be provided to start divorce proceedings
Divorce solicitors need to understand the background of the divorce, the information you would need to provide is the following:
- Grounds for divorce (e.g. adultery, unreasonable behaviour, etc.)
- Who's applying for divorce and whether both parties are in agreement
- What you and your spouse's major assets are (savings, property, pension, etc.)
- What you and your spouse's income and outgoings are
- Details of dependent children
- The original marriage certificate or details of where the marriage took place
After surviving the first decade, couples face near-enough identical risk of divorce, regardless of whether they married in the 1960s, 70, 80s or 90s**
The divorce process
The initial meeting with your solicitor will cover off a number of issues required by the Family Law Protocol to determine the status of the situation. These include any potential prospects of reconciliation or resolution, would there be any danger of children being taken abroad where applicable, whether there is a need to limit access to joint bank accounts and credit cards, as well as other factors. This is collated into a Petition by your solicitor.
The Petition is then sent to the court for processing; once this is done the court -processed documents are sent to the spouse (Respondent) who is required to answer immediately through an Acknowledgement of Service Form which is sent back to the court.
For those with dependent children, it is advisable that an agreement should be made about how they will be looked after before the divorce petition is filed. Otherwise the court may need to become involved in determining the arrangements for the children.
Once the court receives the Acknowledgement and processes this, you are sent a copy along with the statement of arrangements for children (if involved). Two blank copies of a statement and an Application for Directions will also be sent to you.
Provided that the divorce is not being defended, the Petitioner then completes and signs the statement confirming that all the details within the documents are true. A judge then considers the paperwork and decides whether the facts do show that the marriage has broken down irretrievably and that satisfactory arrangements are in place for any dependent children.
If the judge is happy with the paperwork, they set a date when a 'Decree Nisi' will be given. Six weeks and one day after that, the Petitioner will be able to apply for the Decree Nisi to be made absolute. Once the Decree Absolute has been granted, your divorce will be final.
* Source: Office for National Statistics in England and Wales, released 09 February 2013
** Source: www.marriagefoundation.org.uk