Divorce

There is one ground for divorce under English law, namely that the marriage has broken down irretrievably. The spouse who starts the divorce proceedings is called the “petitioner”. The other spouse is the “respondent”. No proceedings for divorce can be started until at least one year after the marriage.

The irretrievable breakdown must be shown in one of five ways:

  • the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  • the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  • the respondent has deserted the petitioner for a continuous period of at least two years;
  • the parties have been separated for at least two years, and the respondent consents to a divorce;
  • the parties have been separated for at least five years.

Therefore, unless the husband and wife have been separated for at least two years and both consent to a divorce, or unless they have lived apart for at least five years, the petitioner must make some allegations of fault against the respondent to obtain a divorce. However, this does not have to lead to messy and expensive litigation, with allegations and counter-allegations. We will always discuss with you ways to try to minimise the stress and difficulty of the proceedings.

All divorces involve an application to the court, but most proceed on the basis of the paperwork alone, and a visit to the court in connection with the divorce (as distinct from questions relating to finances and the children) is rarely necessary. The petitioner files an application with the court (the divorce petition) and a copy is sent to the respondent. Once the court is satisfied that the respondent has received the papers and has had the opportunity to respond, the petitioner can apply for the first, or interim, decree of divorce, known as the decree nisi. The petitioner can apply for the decree absolute, which finally dissolves the marriage, at the earliest 6 weeks and one day after pronouncement of the decree nisi. In practice, we will often advise the petitioner to wait until financial matters are resolved before applying for decree absolute.

Judicial separation and nullity proceedings are alternatives to divorce. Judicial separation does not result in the dissolution of the marriage, but recognises that the parties are to live separately, and allows for orders to be made concerning financial arrangements. Nullity proceedings recognise that a marriage is void, and can again allow for financial orders. Both these types of proceedings can be started before the parties have been married for a year.

This is a brief outline only of the divorce process. Please contact us for more detailed and specific information and for help in drafting all the necessary paperwork. We will always provide costs estimates and can also provide information about recovering the divorce costs from your spouse, where this is appropriate.