What is separation?
To be separated, all you have to do is live apart. There are many couples who decide not to divorce but you should carefully consider your options with a solicitor. It is commonplace to make a Deed of Separation to record any agreement regarding financial matters, children and plans to divorce or not. Care needs to be taken before signing any document as this could be relied upon if a divorce takes place at a later date. If you have both received legal advice, the court would prefer not to overturn the agreement at a later date provided that you had both been honest and there has not been any change in your circumstances.
When you are living apart, you are classed as separated by the Inland Revenue and by the Benefits Agency.
Is there an alternative to divorce?
Yes, this is a Judicial Separation. This is not so common but could be considered when there are religious objections to divorce. It follows the same court procedure as divorce and the court retains the power to settle financial disputes with the exception of pension splitting. The court can also settle any disputes regarding children. The main difference is that you no longer have any legal duty to live together but you cannot remarry. This should be carefully considered with your solicitor.
What do I have to do to get a divorce?
Grounds for divorce
You have to show the court that the marriage has irretrievably broken down. This means that either one or both of you feel that you cannot stay married to each other. Either of you may apply to the court in England and Wales for the marriage to be dissolved as long as you have been married for one year at least and that one of you has been a resident here for the year before your application is made. (If either of you is not usually domiciled in England or Wales, we can refer you to ones with international experience.) The application to the court is called a Petition and the spouse who files (sends) the Petition is called the Petitioner. The other spouse is then called the Respondent. You need to prove one of the five following facts:
a) Adultery
Your husband or wife has committed adultery and you find it intolerable to live with him or her. In most cases you prove adultery by your husband or wife admitting it. If not, you will need to speak to your solicitor. (If you carry on living with your husband or wife for more than six months after you find out about the adultery, you will generally not be able to use this as grounds for divorce unless the adultery is continuing.)
b) Unreasonable behaviour
Your husband or wife has behaved in such a way that you cannot reasonably be expected to live with him or her. This covers all sorts of bad behaviour. You need to think about the main things that have made your husband or wife difficult to live with. These are summed up in the petition (the application for divorce) in a few short paragraphs. It is best not to get emotional and vindictive as this could hamper future negotiations. A good solicitor would aim to send a draft copy to your spouse’s solicitor for agreement.
As with adultery, you cannot rely on single events that took place more than six months before you file your petition, if you have lived together since then unless previous incidents have occurred.
c) Desertion
Your husband or wife has deserted you for a period of more than two years. Desertion means leaving your husband or wife without his or her agreement and without good reason.
d) Two years’ separation
You have lived separately for more than two years and your husband or wife consents to the divorce. This is often called a ‘no-fault’ divorce. You can have had periods of living together as long as they do not add up to more than six months and you have been apart for least two years altogether.
e) Five years’ separation
You have lived separately for more than five years. Your husband or wife does not need to agree to this. They cannot defend this Petition but they can ask the court not to grant the final decree because of a major financial or other type of hardship.
The facts described in a and b are the most used (over 70 per cent of cases) because with all the others you need to have lived apart for more than two years. Only the two year separation in paragraph d needs your husband or wife’s formal consent on the divorce papers. In practice both you and your husband or wife will need to agree that the marriage has broken down. If you file a Petition based on your husband or wife’s behaviour or adultery, it could be beneficial in the long run if you can both agree on the contents and therefore make sure that the petition will not be defended. A draft petition could be sent to the other solicitor for agreement. But in some circumstances, this is not possible and you should as ever be guided by your solicitor.
How long will it take?
This varies from court to court and from case to case, depending on the complexity of the case. As we have said, at best, it can take five to eight months but cases can drag on for considerable lengths of time. The assistance of an experienced family lawyer can help to reduce this stressful period of time when disputes about finances and children have to be considered together with the legal process. These are dealt with in our next section, Financial Aid.
What happens?
If there is a child of the marriage, or if there is a child who has been treated as such (child of the family), then a Statement of Arrangements about the child has to be filed as well. You should fill in details about the child’s school, the other parent and contact arrangements. This applies to any child under 16 and those over 16 who are in full-time education. Details should be checked with your solicitor.
All these documents have to be in a particular format and have to state specific things. It is therefore prudent to have the help of a solicitor although the courts can provide you with blank forms. The Petition has to set out details of one of the five facts that is being proven. The original marriage certificate has to be sent to the court at the same time with the court fee which is presently £300.
Then the court checks and processes the documents.
Then they send them in the post to the other party. This could take approximately four weeks. The other person will get the Petition, the Statement of Arrangements and a document in question and answer format, which has to be sent back to the court, called an Acknowledgement of Service Form. This should be done promptly.
Naming in adultery
You can name the other person with whom the adultery has taken place,
the Co-respondent, but this is probably best avoided as emotions will already be running high.
You may feel better by naming in the short term but in the long run it could add to your spouse’s grievances and perhaps make him unwilling to co-operate. It is satisfactory for the court to have this fact alone without the name. The Respondent should return the Acknowledgement of Service Form to the court within seven days of receiving the petition.
If the Respondent states that he or she wants to defend the divorce If this happens, then a document called an Answer has to be filed within 28 days of receiving the Petition. During this emotional time, the way you have described the reasons for the breakdown of the marriage could lead to more resentment, especially if you were both deciding to separate and your partner may want these to be rephrased. Again, finding the middle ground and avoiding extra confrontation could be better for all concerned as well as reducing the costs. As always, if you feel you want to defend the divorce, be guided by your solicitor. Sometimes this can just add to the costs. Having a specialist family law solicitor could save you time and money as well as stress.
The next step
When the court receives the Acknowledgement, it takes about three weeks to process this. Then you are sent a copy of this together with a copy of part IV the statement of arrangements for any child. You should also receive two blank copies of an Affidavit and an Application for directions.
Complete the Affidavit
You must complete this, preferably with the help of your solicitor who will then arrange for it to be sworn i.e. – that the contents of the Affidavit are true. Any other documents would also be sworn at this stage. You will also need to have your copy of the Acknowledgement. You could also take these to a local court and there would be no charge but the clerks is unable to give legal advice. When this is done and the Application for directions is signed and dated, you send this with the Affidavit to the court office. There is not a fee at this stage.
A judge will decide usually within four weeks of receiving the correct documents whether or not to grant the first decree of divorce which is called a
Decree Nisi.
If the district judge is satisfied that the grounds for divorce are proven and he does not have any queries, a date for the Decree Nisi would then be fixed. The courts review the arrangements for the children. If they are agreed, it is unlikely that the court will interfere. But if the documents sent to the court show that the arrangements are not agreed for the children, then the Petitioner and the Respondent may be asked to attend court. For further details see the article on children In this section.
The Decree Nisi will be pronounced by the court on the date fixed. Neither person has to attend the court. The Decree Nisi is the first of two decrees of divorce. It signifies that the ground for the divorce is proven and that the due process of law has taken place.
Six weeks and one day later (do not apply before), the Petitioner may apply for the second and final decree of divorce; this is called the Decree Absolute. When that is granted, the divorce has taken place. There is no hearing. The application to the court is made on a standard form with a court fee which is presently £40. On receiving the Decree Absolute, you are legally divorced and free to marry again if you so wish.
If the Petitioner does not apply for a Decree Absolute
This means that the Respondent can do so three months later. There has to be a brief hearing before a judge but the petitioner could oppose it, for example, when there are problems with a pension.
Read on In this section for information about children, short term planning, mediation, how to avoid the obstacles leading to settlement and beyond. We also introduce the new Collaborative law process. Please also read our next main section, Financial. Remember to check back in Emotions, Children/Parents and Health sections.
What if we can’t agree about money and/or children?
If after discussions with your solicitor and perhaps mediation or the Collaborative process, you are unable to agree, then you may be advised to proceed to court.
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