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Separation, divorce and dissolution of a civil partnership can be a very difficult time for all concerned. As well as the emotional side of the divorce, there are the legal implications.
Divorce tends to be relatively straightforward legally. Very few cases are contested each year, and for most people going through a divorce, they do not have to go to Court at all. The Procedure is very similar to divorce for dissolution of a civil partnership.
For most people, divorcing is a very big step to take, and although many couples have difficulties sorting out arrangements for the children, or sorting out financial issues, they may leave the divorce until later, until they are emotionally better equipped to deal with it.
There is one ground for divorce – the irretrievable breakdown of the marriage. It must then be supported by one of 5 facts:-
- The couple have lived separately and apart for 5 years
- The couple have lived separately and apart for 2 years where they both consent to a divorce
- One has deserted the other (the period of separation has to be two years)
- One has behaved in a way that the other finds unreasonable
- One has committed adultery and admits to the adultery
Generally a divorce which is straight forward takes between 5 and 6 months. There are certain instances when a divorce can take longer – generally this is because the financial issues need to be sorted out, and a client is advised not to apply for the decree absolute until that has been done. Alternatively, there may be difficulties with the other person not returning papers.
- Complete a divorce petition (DIV8) and (if necessary) a statement of arrangements for the children – the forms can be obtained from the Ministry of Justice website.
- Send them to your local county court along with your marriage certificate (it must be the original) and payment of the Court fee of £550.
- The Court will then take a few days generally to check the paperwork is right, and to allocate the case a case number – this is very important, and is used by the court to identify your case. They will then send the papers to the other person (the Respondent).
- The Respondent has 14 days to return the form to the Court. The form will then be sent out to you.
- At this stage, you must complete a statement in support of the your divorce petition, along with an application for Decree Nisi. You will need to send these documents to the Court.
- The papers then go before a Judge. Once the Judge has time to read your papers, they will check to make sure that everything is order, and the Judge believes you have the grounds to be divorced. If they are happy, they will list your case for pronouncement of Decree Nisi. This is listed, and you will receive notification of the date and time that the Court will be making this announcement. There is usually no need to go to court, unless there is a disagreement between you and the Respondent about costs, in which case the Judge may need you to attend Court.
- 6 weeks and 1 day after the making of the decree nisi, you can apply for your decree absolute. There may be financial issues to sort out, so always seek advice as to whether it is better to wait.
To get your decree nisi you have to satisfy a court that you have served the Respondent with the papers.
This will mean that you may have to either arrange to get an enquiry agent/process server to serve the papers, or alternatively, you will have to make an application to get the Court Bailiffs to serve them. There is a court fee to pay for the bailiffs to serve the papers but it is generally cheaper than arranging for an enquiry agent. However, bailiffs generally do not work outside of court hours – 10 – 4pm, so an enquiry agent may be more likely to be successful.
One you have the report back confirming they have served them after a short period, you can apply for your decree nisi, even though the Respondent hasn’t returned the papers.
Yes you can, provided that you can confirm to the Court that even though you are living under the same roof, you are maintaining separate households. This means that you have to confirm to the court that you are not sharing meals, you are not sharing a bed, you do not have sex, you do not cook and clean for each other, and that your finances are, as far as possible, separated. The Judge may ask for a statement from each of you to confirm that is the position.
You can only rely on the ground of adultery if there is an admission that adultery has been committed. If the Respondent will not admit to the adultery, then you cannot go ahead on that ground. You would then have to consider if there were grounds for divorce under the heading of unreasonable behaviour.