Divorce and separation proceedings can be a complicated process, but like any legal process, our lawyers will help break it down for you.
While it’s never been easier to get divorced with huge amounts of guidance online, some guides fail to take into account the basics. This isn’t a guide for dummies so much as a guide for the uninitiated on the basics of divorce, namely how you qualify for a divorce in the first place.
On a side note, the term used here is divorce, but the same advice is true for ending a civil partnership, or if you are looking to get legally separated.
Divorce Proceedings 101
When talking about divorce, it’s useful to know that the person who kicks off the divorce process is called the petitioner, and the other party is known as the respondent.
First and foremost, many people are surprised to find out that you have 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. If you haven’t reached your anniversary yet, keep reading as you might find it helpful to know the process when the time comes.
And 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 meet all of these criteria, you can begin divorce proceedings.
What are Grounds for Starting the Divorce Proceedings?
This term is well-known, but the truth of the matter is that legally, there is only one ground for divorce, which is that the marriage has ‘irretrievably broken down’.
For the court to agree that the marriage has irretrievably broken down, as the petitioner you must prove one 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.
The vast majority of divorces are based on adultery or unreasonable behaviour as they are easy to prove, or unlikely to be contested.
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.
If you start proceedings without a divorce lawyer on your side, then there is no need to name the person with whom the adultery took place.
Using unreasonable behaviour as the reason for divorce is straightforward, but you have to be able to demonstrate both what it is that spouse did, as well as its impact on you. Unreasonable behaviour also 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 are the Divorce Proceedings?
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 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 in the Divorce?
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 During the Divorce Proceedings?
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.