Divorce and Separation
19 July 2019
Divorce and Separation
A breakup or divorce can be one of the most stressful and emotional experiences in life. Whatever the reason for the split the breakup of a relationship can be a very difficult time for all parties involved. In this month’s article, Ismail Foolat, Head of our Family Team explains the steps to getting divorced;
‘The complicated aspect to divorce is not the dissolving of the marriage but sorting out the issues surrounding that. It's the money and issues about children where you'll need a lawyer. It’s vital to ensure that the divorce, once completed, is final and that there is no further claim an ex-spouse can have on your assets'
If you're thinking about going through the divorce process in England or Wales, here's everything you need to know.
HOW TO GET A DIVORCE
First steps; The first thing you need to do is fill in a 'divorce petition'. If it's you doing so, you become the 'petitioner' and the person who is requesting the divorce. The divorce petition is an application form which requires a lot of details; Names and addresses, dates of birth, where you got married, etc. If you are the petitioner, you will have to detail a ‘ground for divorce’;
Grounds for divorce;
Divorce law phrasing can be very old fashioned. The only 'grounds' for divorce are that the marriage has irretrievably broken down. So to show that's happened, you have to manoeuvre yourself into one of these five categories.
1. Adultery
The law hasn't been reformed since the 70’s and this only refers to heterosexual relationships. If your ex-partner cheated on you with someone of the same sex, you wouldn't be able to use adultery as a grounds of divorce. In an adultery petition the other person has to formally admit on a response form to the court that they’ve committed adultery. So if you can’t be sure they’re going to admit to it, you should not go down this route, 'unreasonable behaviour' would be a better ground to use.
2. Unreasonable behaviour
This is the one that’s most commonly used reasons for a divorce. It can be ‘he didn’t like my friends, ‘he doesn’t go out without me’ or even ‘she doesn’t do the washing up’. You can also use the 'unreasonable behaviour' grounds where the relationship has involved domestic abuse. You have to put in the petition a few paragraphs as to what has happened and why this means the marriage has broken down. These need to be specific examples but you don’t have to include dates, just a general pattern of behaviour really. Unlike with adultery, the person on the receiving end doesn’t have to formally admit to this.
3. Desertion
Desertion is rarely used in divorce cases and applies where your husband or wife has left you:
• without your agreement
• without a good reason
• to end your relationship
• for more than 2 years in the past 2.5 years You can still claim desertion if you have lived together for a period of up to six months during this period.
4. and 5. Separation
There are two options for separation grounds. The first applies if you’ve lived separately in separate homes and physically apart for two years. This requires the other person’s agreement.
The second is if you’ve lived apart for five years, and doesn’t require the other person’s agreement.
Sending the petition to the court Once your petition is completed, your solicitor will require a few final things before submitting your application to Court;
• The original marriage certificate or an official copy which you can get from the local registrar.
• There will also be a court fee - the petition won't be issued without a payment being made. This is usually paid by the petitioner but people often agree to share the costs. If you’re on a very low income you can sometimes get an exemption from some of the fee but you have to make a separate application and produce details of your circumstances.
What if there's money to be sorted out?
In the petition, there's a question asking if you want to make a financial claim. We have a process called financial disclosure which means that before you start even considering how you’re going to divide things up, you both need to be open and honest and provide information about your finances. This tends to be done in parallel to the petition.
What happens next?
Once the petition has been sent off to the court, your ex-partner will then get a copy of it so they'll know the full details of the petition. The person on the receiving end (the ‘respondent’) then has to send back an acknowledgement form to the Court confirming they’ve had the papers. They'll also state whether they’re going to defend against the grounds within seven days.
Decree nisi
Most divorces are undefended and go through without any dispute. The court then sends a copy of their acknowledgment to the petitioner. You'll then have to fill in another form to apply for the 'decree nisi'. This is the Court indicating that you have sufficient grounds for the divorce.
Decree absolute
Once you’ve got your decree nisi pronounced, after six weeks and a day, if you’re the petitioner, you can apply for the 'decree absolute'. This is the document which dissolves the marriage. The six weeks and a day is essentially a cooling off period in case you change your mind.
How long will the process take?
A divorce is likely to take five or six months if there is there are no issues or hitches or dispute. When agreeing finances and matters relating to children, divorces can take much longer but a good solicitors will guide you through the process to make it as stress free as possible.
How much will it cost?
Curtis Law work on a fixed fee basis for many aspects of a divorce. Call the family team today to see how we can help you.