The breakdown of a marriage or Civil Partnership can be an incredibly stressful and emotional time. The thought of proceeding with a divorce or dissolution of Civil Partnership can often feel overwhelming. However, in England and Wales, obtaining a divorce or dissolution (leaving aside the financial issues that arise), is straightforward, particularly where both parties agree that the marriage is over.
If you are looking to divorce, here is a step by step guide of the different stages that you will encounter.
There are four main stages to the English divorce process:
- Divorce Petition
- Acknowledgement of Service
- Decree Nisi; and
- Decree Absolute.
Stage 1: Divorce Petition
Who can start divorce proceedings?
In order to proceed with a divorce, you must meet with the following criteria:
- You and your spouse must have been married for over one year; and
- You meet one of the following jurisdiction requirements:
- both parties to the marriage are habitually resident in England and Wales
- both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
- the respondent is habitually resident in England and Wales
- the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
- the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made
- both parties to the marriage are domiciled in England and Wales; or
- either of the parties to the marriage is domiciled in England and Wales
It does not matter if the marriage ceremony took place abroad. However, if the marriage involves links to another country, there is a possibility that divorce proceedings could be issued in another jurisdiction. If there is the risk of a jurisdiction dispute, is important to obtain advice early to ensure that the proceedings are issued in the country that is best for you.
Grounds for a divorce
As the law stands at June 2021, a spouse can apply for a divorce where their marriage has “irretrievably broken down”. This irretrievable breakdown has to be proven by one of five facts:
- Adultery of your spouse
- In order to rely on this ground, you or your spouse would have to show that the Respondent in the proceedings has committed adultery (you cannot rely on your own adultery) and you find it intolerable to live with them.
- You would have to show that your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
- Examples of behaviour can be as anodyne as possible and
- It is good practice to try and agree the examples of the unreasonable behaviour with your spouse being issuing the petition at Court to try and avoid them from opposing the petition, which can be costly.
- Two years’ separation by consent
- You and your spouse must have been living separately for 2 or more years from the date that it was decided that the marriage was over and your spouse agrees to the divorce
- Five years’ separation
- You and your spouse must have been living separately for 5 or more years from the date that it was decided that the marriage was over. Your spouse’s consent is not required.
- This ground is very rarely used.
The latest statistics from the Office of National Statistics (published in November 2020) showed that in 2019, behaviour was the most common reason for divorcing in 2019, with 49% of wives and 35% of husband’s petitioning on this ground.
Stage 2: Acknowledgement of Service
Once the divorce petition is submitted to the Court, your spouse can either:
- Refuse to accept that the marriage has irretrievably broken down (contest the divorce); or
- Accept that the marriage has irretrievably broken down
Your spouse’s response will be listed in the Acknowledgement of Service that they have to lodge with the Court within 7 working days from being served with the divorce petition.
Stage 3: Decree Nisi
In the divorce process, pronouncement of Decree Nisi is actually considered the most important stage. Whilst it does not mean that you and your spouse will be divorced, it is only on pronouncement of Decree Nisi that the Court can make an order in respect the financial aspects of the divorce.
To apply for Decree Nisi, you need to prepare a statement in support confirming that the contents of the divorce petition are true and outlining whether since the divorce petition, any circumstances have changed. The Court will then consider the application and once considered, will provide a certificate confirming the date that Decree Nisi will be pronounced.
You and your spouse will not have to attend Court to hear the Court pronounce your Decree Nisi unless you wish to or there is a dispute relating to the costs of the divorce petition. Once read out in Court, the Court will send to you both a document confirming that it has been pronounced. If you or your spouse have claimed costs in respect of the divorce only, the Court will also make an order for the payment of the costs at this stage.
Stage 4: Decree Absolute
Decree Absolute confirms that you and your spouse’s divorce has been finalised. At this stage, you would no longer be married.
When can you apply for Decree Absolute?
If you are the applicant, then you can apply for Decree Absolute, 6 weeks and 1 day after Decree Nisi is pronounced in Court. In the event that this does not take place, then the Respondent in the proceedings, can apply but only after 3 months have passed since the date that the Petitioner could have applied. The petitioner could object to the application in certain circumstances.
When should you apply for Decree Absolute?
It is common practice in England & Wales to hold off applying for Decree Absolute until the financial aspects of the marriage have been dealt with. This is because once you and your spouse are no longer married, you would lose certain rights such as an entitlement to a widow’s pension and inheritance should your spouse die before a financial agreement is reached.
Once the financial agreement is reached, it is often important to apply for Decree Absolute soon after as the financial Order made by the Court is not capable of enforcement until Decree Absolute has been granted.
Effect of obtaining Decree Absolute
Decree Absolute as mentioned above, means that you and your spouse would no longer be married. This affects inheritance and so any bequest made in a Will to your ex-spouse or their appointment as an executor would no longer take effect. It is therefore important that you consider making a new Will.
Changes to Divorce Law in England and Wales
On 25 June 2020, after decades of campaigning, the Divorce, Dissolution and Separation Bill became an Act of Parliament. This brought a welcome change to the outdated laws made in 1973 towards a system of no-fault divorce. The effects of the Act are as follows:
- No need to establish one of the 5 facts to support the divorce. Instead it would require you and your spouse to provide a statement of irretrievable breakdown.
- You or your spouse could not defend divorce proceedings, unless on grounds of fraud, lack of jurisdictions or procedural irregularities
- Can jointly apply for a divorce
- A change in terminology, so Decree Nisi will be called a “conditional order” and Decree Absolute called a “final Order”
- 20 weeks will be required from the date that the divorce is applied for until Decree Nisi can be pronounced, allowing 5 months to try and agree the financial arrangements.
Despite becoming an Act of Parliament in June last year, the no fault divorce law has not yet been implemented although it is anticipated it will come into force in April 2022. This means that until such time the new law is implemented, couples wanting to divorce now, have to still rely on the current system.
If you are considering obtaining a divorce in England & Wales or your spouse has commenced divorce proceedings, it is important that you obtain advice on the procedure and steps you should take as soon as possible. At Rayden Solicitors we have specialist family lawyers who can advise you on all aspects of divorce and financial matters, including those matters with cross-jurisdictional issues in particular our Anglo French team who advise on cases involving France or French nationals.