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Tuesday, 18 January 2011

Getting a divorce

Getting a divorce starts with a form called a 'petition for divorce', otherwise known as Form D8. You will need to fill in three copies; one for you, one for the court and one for your husband or wife.

Starting the divorce process

Once you have filled in a petition, which you can get from a solicitor, some stationers, or the HM Courts Service website, take it to a divorce county court or to the Principal Registry of the Family Division in London.

On the form you'll have to explain why you want a divorce. You cannot start divorce proceedings unless you have been married for one year.

Reasons for divorce

The court will only grant you a divorce if a judge agrees that your marriage is at an end. The legal term for this is 'irretrievably broken down'.

You must satisfy the court that one or more of the following is true as proof that your marriage is over:

  • adultery by your husband or wife
  • unreasonable behaviour by your husband or wife (any behaviour that means you find it impossible to live with them)
  • desertion for a period of at least two years
  • two years' separation, if you both agree to the divorce
  • five years' separation, if there is no agreement to the divorce

The main stages of divorce

Once you return your petition to the divorce county court you have started the divorce process. From now on you are legally known as 'the petitioner'. Your husband or wife who you are divorcing is legally known as 'the respondent'.

You will need to supply copies of your marriage certificate, details of any children involved and also the name and address of any person with whom your husband or wife has committed adultery if you wish to name them in the divorce proceedings as grounds for the divorce. They are known as 'the co-respondent'.

Serving the petition

The courts will then post a copy of the petition to your husband or wife and any co-respondents named in your divorce petition. This is known as 'serving the petition'. Your husband or wife then has eight days to acknowledge receipt of the petition. If they don't do this, the court will contact you and ask for more details and, if necessary, arrange for a court official - known as a bailiff - to serve the petition in person.

Once the petition has been served, what happens next depends upon whether or not your husband or wife contests the divorce or agrees to it. You may be asked to provide more information by the court. If you have children then the court must examine and agree with arrangements made for the children. This includes who they are going to live with, where they are going to live and what contact they will have with the non-resident parent.

Decree Nisi

The next part of the divorce process is known as the 'Decree Nisi'. This is the first stage of the actual divorce. It is granted only when a judge has reviewed all of the papers and is satisfied that there are proper grounds for a divorce. The judge will also check that all financial issues and arrangements for the children have been agreed or are in the process of being resolved. You may be required to attend court, but many divorces happen entirely by post.

Decree Absolute

The final stage of a divorce is called 'the Decree Absolute'. You can apply for the Decree Absolute six weeks and one day after the Decree Nisi. If you don't apply for the Decree Absolute, then your husband or wife as the respondent can apply for it, but only after a further three months have passed. When you receive the Decree Absolute, you are no longer married and are free to re-marry.

The court will only grant the Decree Absolute when the judge agrees that all arrangements for the children are now satisfactory. A judge can make a final financial order before the Decree Absolute is granted, but the order will only come into force after the decree has been made absolute.

Getting help with the process

You do not have to use a solicitor; many couples get divorced without one. However, you may need legal advice if:

  • you are not sure whether you have grounds for a divorce
  • your husband or wife does not agree to a divorce
  • you have children

The Citizens Advice Bureau can help you fill in the necessary forms, and can help you find a solicitor, if you need one. Alternatively you can get online help with the divorce process on the Wikivorce website.

You may need legal advice about financial issues, even if you agree on how to divide up your property and finances. The process of sorting out the financial aspect of the divorce is known as 'ancillary relief'. It is not the case that property is automatically divided in a 50/50 split. If you do go to court the judge will consider a number of factors when deciding who should get what, but the needs of any children will always be the main consideration.

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