Taking that first step to starting a divorce can be exhilarating and terrifying, all at the same time. Thankfully though, the process doesn’t need to be complicated, especially if you’ve got a solicitor on side.
With divorce rates higher than they have ever been, there’s no shortage of free divorce advice online. However, many guides fail to take into account the basics. This article explores what criteria you need to meet before you can actually start the process of divorce, rather than the divorce process itself.
While we use the term divorce, the same criteria apply whether you are ending a civil partnership, or looking to get legally separated.
The basics of divorce
While everyone can get divorced, many people don’t know that there are criteria in place that can prevent you from kicking off a divorce right there and then.
First and foremost, you’ve got to have been married for at least one year before you or your spouse can start divorce proceedings. Why? Lawmakers deem that you need to have had a suitable time to make your marriage work, which is one year. Unfortunately there isn’t any way around this unless you can prove that the marriage didn’t take place properly and you can get it annulled. But that’s a whole different topic.
Second, once you’ve been married for a year, you’ll need to show that you are a habitual resident of the UK or domiciled here. This typically means you’ll need to prove you have lived in the UK for at least 1-3 months prior to starting divorce proceedings, or that you are a taxpayer here.
If you can tick both these boxes, you can begin divorce proceedings as long as you have valid grounds.
What are the grounds for starting divorce proceedings?
If you watch enough TV soaps, read enough gossip columns, or have simply been exposed to mainstream media in any way, shape, or form, you’ll probably have heard of marriages breaking down due to ‘irreconcilable differences’. And when we ask our clients what the reason for their divorce is, many cite this reason, which is understandable. Indeed, family courts will look to see that a marriage cannot be reconciled before approving the divorce.
But irreconcilable differences are not officially a grounds for divorce that can be used in England and Wales. In fact, this isn’t even an option to tick on a divorce petition.
Instead, you’ve got to have a valid reason as to why these differences arose in the first place, known as the grounds for divorce. If you’re starting divorce proceedings, you need to ensure you have a valid grounds for divorce, which could be any of the following:
- Your spouse has committed adultery and you find it intolerable to live with them.
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with them.
- Your spouse has deserted you for a continuous period of at least two years immediately before the start of the divorce.
- You have lived apart for two years and your spouse agrees to the divorce proceedings.
- You have lived apart for five years. You can start divorce proceedings whether or not your spouse agrees.
Realistically, the majority of divorces are approved on grounds of adultery or unreasonable behaviour. This is in part because they are common reasons marriages break down, but also because they are easy to prove. Without proof of a grounds for divorce, it’s unlikely the divorce will be approved at the very first stage.
There are some caveats that exist, in particular when it comes to adultery. Legally, adultery has to be penetrative sex with a person of the opposite sex, meaning if you are in a same sex marriage or civil partnership, this may not be applicable. For that reason, many same sex divorces tend to use unreasonable behaviour as the reason for divorce. Additionally, you cannot rely on adultery if, after becoming aware of the adultery, you and your spouse cohabited for a period (or periods when added together) exceeding six months.
And while using unreasonable behaviour as the reason for divorce is relatively straightforward, you have to be able to demonstrate both what your spouse did, as well as its impact on you. The behaviour doesn’t have to be extreme or involve violence. For example, you could say that your partner worked too much, or even something as broad as they failed to demonstrate love and affection towards you.
Whenever we carry out a divorce, we’ll advise you on the facts and draft the divorce petition for you before getting your approval. If you’re still on speaking terms with your spouse, we also advise that you send a copy to them before filing the petition so they can express any concerns about it.
What happens to the divorce petition?
When a divorce petition has been finalised, it’s filed at court together with your marriage certificate and court fee (currently £550). The papers are then served on your spouse or their lawyer.
Your spouse then needs to file a document called an ‘acknowledgment of service’, which acknowledges receipt of the divorce petition and indicates whether he or she agrees with the contents.
It’s possible your spouse may indicate the intention to defend the divorce proceedings in the acknowledgment of service, but this is rare. Normally this only happens in particularly acrimonious splits, and you would typically know beforehand.
If your spouse doesn’t indicate an intention to defend the proceedings, you’ll be able to apply for the first part the two-part divorce order, a ‘decree nisi’.
You have to file a statement in support of the petition to accompany the application. This statement poses a number of questions aimed at ensuring the contents of the petition remain true and correct. It also ensures there haven’t been any changes where you’re no longer able to prove the marriage irretrievably broke down.
You have to wait for a period of exactly six weeks and one day from when the decree nisi was granted to be able to apply for the second decree, a ‘decree absolute’. This brings your marriage to an end and you are then formally divorced. You should not, however, apply for decree absolute until any application for financial orders has been resolved.
What if children are involved?
If you and your spouse reach agreement about the arrangements for your children then the court will not need to get involved and make any orders.
If you cannot agree the arrangements relating to the children, either of you can make an application to the court. This should be a last resort and you should try to resolve any issues through negotiation or mediation.
What about the family finances?
When a divorce petition has been filed at court, either party can apply for financial orders. The orders available in financial remedy proceedings include the following:
- Periodical payments (also known as maintenance)
- Lump sum orders
- Property adjustment orders (altering the ownership of property)
- Pension sharing orders and pension attachment orders.
Britton and Time lawyers will send separate advice detailing how the court determines financial provision on divorce if you indicate you wish to proceed with divorce proceedings.
Contact Britton and Time’s Divorce Lawyers now
If you need a divorce lawyer in Brighton and Hove, then click here to contact us now or call 24 hours a day, 7 days a week on 01273 726951 to speak to one of our divorce lawyers. We are also able to give independent legal advice on any financial remedy consent orders reached.