Divorce and Separation FAQs
When can a divorce Petition be issued?
You cannot issue a divorce Petition until you have been married for more than one year. However, this does not stop you from separating and trying to agree arrangements in relation to finances and the children in the meantime.
Do I need a solicitor to get a divorce?
It is advisable to instruct a solicitor if the divorce involves international issues or significant sums of money. A solicitor cannot act for both spouses and you should each obtain your own independent legal advice.
Do I have to get divorced in the country I was married?
No. It does not matter where you were married. However, it does matter where you and/or your spouse are living at the time the Petition is issued and to decide which country is most appropriate, you will need to consider which country you are domiciled in and/or habitually resident as this will determine whether the Court is able to deal with it (i.e. whether the Court has jurisdiction). Domicile and Habitual Residence can be complex issues which may need to be explored, if you or your spouse have connections abroad. If so, this is something you should seek expert legal advice on before issuing any proceedings as it may have significant implications, in relation to the divorce, financial, and possibly the children arrangements.
Will my marriage certificate be required?
Yes. Your divorce Petition needs to be accompanied by either your original or an official certified copy of your marriage certificate. A photocopy is not sufficient. If you were married in England or Wales, you can easily obtain an official certified copy of your marriage certificate from the office of the Registrar of Births, Deaths and Marriages for the district in which you were married. The Court does not return your marriage certificate after the divorce. Different formalities apply if you were married abroad and you will need to make enquires with the relevant authority.
What do I need to prove to issue a divorce Petition?
The only ground for divorce is that the marriage has irretrievably broken down. This is proven by establishing the existence of one of five factual circumstances:-
- Unreasonable behaviour
- Two years separation with your spouse’s consent; or
- Five years separation, whether your spouse consents or not
It is not necessary to prove that your spouse has committed adultery, i.e. by photographic evidence, video footage, or other evidence (unless the divorce is defended, which is rare – see below), and it is no longer compulsory to name the third person involved. However, it is not possible to issue a divorce Petition on the basis of your own adultery, as you also have to show that it is intolerable to live with the other person as a result of the adultery committed. Furthermore, you will not be able to rely on the fact of adultery if you continue to live with your spouse for six months after finding out about the adultery. Unreasonable behaviour is the most common fact relied on, given that the remaining facts require parties to be separated for two years or more. However, again, living with someone for more than six months after the unreasonable behaviour could prevent you from relying on this fact. The phrase ‘living separately’ is not interpreted literally and you do not necessarily have to be living in separate houses in order to establish that you are living separately and therefore separated. It is important to seek legal advice on which factual circumstance you should rely before issuing divorce proceedings.
Does it make a difference who starts the divorce proceedings and whose ‘fault’ it is?
No. It does not make any difference who issues the proceedings and whose ‘fault’ the breakdown of the relationship is. This is not something which the Court will consider when considering matters relating to the children and financial arrangements.
Will I need to attend Court?
Not usually. The divorce is a paper process and you will not be required to attend Court unless the proceedings are defended, which is rare. However, you may have to attend Court if you and your spouse are unable to agree arrangements for your children or for financial provision (see below and separate FAQ sections on Financial and Children Proceedings).
Are the divorce proceedings held in public?
Family Court proceedings are not held in public. However, following recent changes in the law, the Family Court proceedings are now open to the media, with the exception of resolution hearings in Children Act proceedings and FDRs in financial proceedings (see separate FAQ sections on Financial and Children Proceedings). However, there are restrictions on the extent to which the detail of the hearings can be reported i.e. in the interests of minor children and protection of privacy, and applications can be made to exclude the media if thought necessary.
When are financial issues dealt with?
Negotiations in relation to the financial arrangements on separation or divorce are separate and can take place at any time before, during or after the divorce. It is not usually necessary for negotiations to have been completed before the divorce has been finalised, although it is sometimes advisable not to finalise the divorce until financial arrangements have been agreed and recorded in a Consent Order. Particular issues, such as maintenance, may need to be resolved in advance of an overall settlement being reached, and this may require a separate hearing if necessary (see separate FAQ’s on Financial Proceedings).
When will I be able to remarry?
Neither party to the marriage is free to remarry until the final decree of divorce has been made (known as the ‘Decree Absolute’).
How long will it take?
Where a divorce is not contested, it usually takes an average of 5 –6 months from issuing proceedings to the pronouncement of Decree Absolute. However, this is somewhat dependant on the Court timetable, and there can often be a backlog in dealing with applications.
Can I get my costs paid by the other party?
If you are the party issuing the proceedings (the Petitioner) then you can seek an Order for Costs against your spouse (the Respondent) within your Petition. This relates to the legal costs you have incurred by issuing the Petition, including the Court fees and your solicitors’ fees. However, this is usually only ordered where the divorce is based on adultery or unreasonable behaviour, unless otherwise agreed between the parties. It is open to the parties to agree whether to seek a Costs Order, share the costs, or meet them themselves.
How does the divorce process work?
The divorce proceedings begin when the Petitioner issues the Divorce Petition at Court, and the relevant Court fee is paid. Either the Court, the Petitioner’s solicitors, or the Petitioner themselves will need to serve the Petition and any accompanying documents on the Respondent, most commonly by first class post. The Respondent is then required to complete and return a document known as the Acknowledgement of Service, to confirm that they have received the Petition and indicate whether they agree with the jurisdiction, the proceedings and the costs. Once the Acknowledgement of Service is returned (provided the Respondent is not defending the divorce), the Petitioner can apply for the provisional decree of divorce (known as the Decree Nisi) which acknowledges that the Petitioner is entitled to a divorce. At the same time, the Court will consider making a Costs Order, if sought. It is not necessary to attend Court for the pronouncement of Decree Nisi.
What happens if the Respondent wishes to defend the divorce
I the Respondent wishes to defend the divorce, then they must file a defence (known as an ‘Answer’) within 29 days of receipt of the divorce papers (longer time limits apply where the Respondent lives outside England and Wales). The Petition then becomes defended and it is necessary to apply for the Court to list a hearing for directions, and thereafter a fully contested hearing. However, it often still proves possible to reach a compromise, even when an Answer has been lodged and defended divorce proceedings rarely result in a fully contested hearing. It will, however, inevitably take longer to finalise the divorce and the costs will increase. If a Respondent wishes to defend the divorce, either by contesting the fact relied on or by ignoring documentation, then at the very worst this might mean that you must wait until you are separated for five years, when you can get divorced without their consent (subject to financial arrangements).
What happens where the Respondent agrees that the Court has jurisdiction, and does not wish to defend the divorce, but objects to paying the costs?
It is up to the Petitioner whether they still decide to pursue a Costs Order against the Respondent, and thereafter for the Court to decide whether to make such an Order. In proceedings based on the Respondent’s adultery or unreasonable behaviour, the Court will usually make a Costs Order in the Petitioner’s favour. However, this is less likely where the Petition is based on two years separation or more. Often, where the Court makes a Costs Order in the divorce proceedings, this is usually dealt with within the financial arrangements, either arranging for payment or agreeing not to enforce the Order as part of the overall negotiations.
What happens if no acknowledgement of service is returned to the Court within the time limit?
The Petitioner will need to prove that the Respondent has received the divorce papers and is choosing to ignore them. This may require a duplicate set of the papers being sent to the Respondent by recorded delivery or arranging for someone to deliver the papers to the Respondent personally. In exceptional circumstances, where every attempt has been made to ensure that the Respondent has received the divorce papers, it may be necessary for the Petitioner to apply to the Court to make an order dispensing with the need to effect service. This will increase the costs of the divorce.
When can the Petitioner apply for the Decree Absolute?
The Petitioner can only apply for the Decree Absolute once a period of six weeks and one day has passed since the Decree Nisi was pronounced. The application is made on a standard Court form and is usually processed within a few working days. It is important to discuss the timing and impact of the application for Decree Absolute with a solicitor before it is made. The granting of the Decree Absolute is what makes the divorce final and dissolves the marriage, entitling the parties to remarry. The Petitioner can stop the proceedings at any time up until this point if they wish.
Can the Respondent apply for the Decree Absolute?
If the Petitioner does not apply for the Decree Absolute then the Respondent can make the application, but will need to wait a further three months from the date on which the Petitioner could have first applied (i.e. six weeks and one day, plus three months). The application is not granted automatically and usually requires attendance at Court.
Do I have to get divorced? What are the alternatives?
If your relationship has broken down but neither of you wish to issue divorce proceedings, then there are other ways in which you can formalise your separation, without taking the step of issuing divorce proceedings and ending the marriage. One option is to issue a Petition seeking a Judicial Separation. The other is not to issue any proceedings, but formally separate and record the terms of your separation (i.e. in relation to financial matters and arrangements for the children) in a document known as a Separation Agreement or Deed of Separation.
What is Judicial Separation?
A Decree of Judicial Separation is a Court Order similar to the Decree Nisi in divorce. However, the significant difference is that you will remain legally married. The Decree of Judicial Separation simply acknowledges that you no longer have an obligation to live together. The process is the same as with a divorce, and starts with the issue of a Judicial Separation Petition. However, it only goes as far as the Decree of Judicial Separation. It is not possible to apply for the Decree Absolute, as this is what terminates the marriage. The basis for a Judicial Separation are the same five facts which exist for divorce but you are not required to prove that the marriage has broken down irretrievably and there is no requirement that you have to be married for a year before the Petition for Judicial Separation is issued.
Following a Decree of Judicial Separation, the Court has the same powers that it would have in relation to financial provision on divorce, save that the Court cannot make orders for pension sharing orders as this is only possible following the grant of Decree Absolute. It is also not possible to achieve a true ‘clean break’ following a Decree of Judicial Separation, as again can only be achieved following the grant of Decree Absolute. You will remain legally married and therefore your spouse’s entitlement under pensions, policies, and wills remain intact, unless specifically changed.
Decrees of Judicial Separation are very rare and are only used when both parties are strongly opposed to divorce, perhaps for religious reasons, or wish to issue proceedings before they have been married a year, or where it is preferable for the parties to remain married i.e. if they are elderly and do not wish to terminate their spouses right under pensions, policies, and wills. There is nothing to stop either party seeking a divorce in the future and relying on the same fact stated in the Judicial Separation Petition. Similarly, there is nothing to stop the parties getting back together following a Judicial Separation, as you can apply for the Courts to rescind the Decree of Judicial Separation.
What is a Separation Agreement/Deed of Separation?
If you do not wish to issue any proceedings whatsoever, then there is an option to formally separate and record the terms of the separation in a Separation Agreement or Deed of Separation. This document will record the details of the marriage and any children of the family and the date on which the parties will separate/have separated and will then regulate the terms of their separation by recording exactly what the parties have agreed between them for the period of their separation, i.e. whether to sell the home or transfer it to one party or the other, whether any maintenance is to be paid, who the children are to live with, which school they are to attend etc. This can then be signed as a Deed by both parties and each will retain a copy for future reference and can use this as a point of reference if there is any disagreement in the future. Any changes that either party wishes to make to the agreement in the future can only be made by agreement, and should be recorded in a subsequent Deed. The Deed can be used long term and be the only document recording the fact of the separation. However, again this means that the parties will remain legally married and the same warnings apply as with judicial separation with regards to pension sharing orders, clean breaks, pension benefits, policies, and wills (see above).
Alternatively, a Separation Agreement/Deed of Separation can be used by parties who wish to issue a divorce on the fact of two years separation with consent, but have not yet been separated for two years and wish to reach and record their agreement on finances and the children immediately. The document can then be converted into a Court Order at the time when the divorce is sought. Whilst such agreements are not enforceable as an Order of the Court and the Court can alter the arrangements made if it thinks them unfair, the agreements are clear evidence of the parties’ intentions and if both parties provide full financial disclosure and receive independent legal advice, then these agreements are often upheld.