When can you obtain a divorce?
A divorce petition can only be filed when you have been married for at least one year. You do not have to have been married within England and Wales but you have to be able to satisfy the court that you have sufficient connection with England and Wales to allow you to issue divorce proceedings. This is known as "the court’s jurisdiction".
What are the grounds for divorce?
You must show your marriage has broken down irretrievably. You do this by establishing one of five facts.
- Your spouse has committed adultery and you find it intolerable to live with him/her.
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her.
- Your spouse has deserted you for a continuous period of at least two years.
- You have both lived apart for a continuous period of two years and your spouse agrees to the divorce.
- You have lived apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.
The relevant fact is included in the divorce petition, which is a standard document. In relation to each fact you must provide the court with supporting information, the most extensive of which will be in connection with behaviour.
What documents do I need to file with the court?
To commence divorce proceedings you must file the divorce petition relying on one of the above five facts, a statement of reconciliation, your original marriage certificate and the filing fee which is at present £550.00.
Do I have to attend court?
Attendance at court is normally only necessary if your spouse contests the proceedings. You may have to attend court if you are unable to agree arrangements for your children or a financial settlement.
Are the divorce proceedings held in public?
In family law, court proceedings are usually held in private. The decree nisi is however a matter of public record and can be disclosed. This information is limited to the names of the couple and the basis upon which the divorce was granted.
How long will this take?
Under normal circumstances from the date a divorce petition is issued by the court, the divorce will normally take between 4 to 6 months to the decree absolute stage.
When can I remarry?
Neither of you will be able to remarry until the decree absolute has been made by the court.
Are there any alternatives to divorce?
- Judicial separation - the procedure for this is the same as divorce and you use one of the five facts set out above. You are not however stating that the marriage has broken down irretrievably. You receive your decree of judicial separation at the stage when you would receive the decree nisi on divorce. The decree will make you legally separated and give you access to some of the court's financial powers, but you will not be allowed to remarry.
- Deed of separation - this can only be done with the consent of both parties, as it is a contract. It is usually utilised to cover a period before a divorce is obtained on one of the separation grounds. The deed allows you and your spouse to set out the terms of your settlement, including all financial agreements and matters relating to the children. This is then signed and witnessed and amounts to a contract between you that is enforceable through the courts.
Should I make a new Will?
It is advisable to make a Will to ensure your affairs are handled as you would wish in the event of your death. Do not assume that what you want to happen will actually occur in the absence of a will. Guardians for children need to be appointed in the event of a parent’s death. Executors and trustees need to be chosen to handle the task of paying any debts and releasing your property and money to nominated beneficiaries. When you own property jointly will you want it to be sold to realise your interest or passed to the other joint owner(s)? If you have not made a Will, you could be leaving your family in a worse position than you intend. We can also assist you with a new Will, for more details click here.