In this insight we look at the divorce process in England and Wales, and identify the various milestones of the this process.
In order to get a divorce, it is necessary to complete a divorce petition. This paperwork must then be filed with the family court, together with a copy of your marriage certificate. Once the petition is filed, the divorce proceedings have officially begun.
The person who files the divorce petition is known as the petitioner. The other party is known as the respondent.
Your solicitor may recommend that a draft copy of the divorce petition is sent to the respondent before submitting it to the court. Agreeing what is in the divorce petition beforehand may help to avoid any unnecessary delays further down the line.
However, in some instances, such as if there is an international element to your divorce, your solicitor may recommend that you do not inform your spouse that you intend to file for divorce. This is due to the fact that who files for divorce first (and in what country), could make a difference to how your divorce (and financial settlement) is handled.
Once the respondent has been served with the petition, the decree nisi can then be applied for.
The decree nisi is a document in the divorce process which confirms that you are able to end your marriage through a divorce. It will be pronounced in court once the grounds of the petition are accepted.
If your spouse contests the decree nisi, it will be necessary to go to court, where a judge will listen to your argument and decide whether or not the decree nisi should be granted.
After the decree nisi is granted, the court is then able to make an order with regards to your financial settlement.
Although not part of the divorce process itself, negotiations to reach a financial settlement will often run alongside the divorce process.
It is possible to apply for the decree absolute at least 6 weeks and 1 day after the decree nisi is pronounced. In reality, the timescale is often much longer than this, especially if there are complex international assets and investments involved in the negotiations for the financial settlement.
The length of the divorce process will depend on a number of factors. If the finances are relatively simple and an agreement about the financial settlement is reached quite early on, the whole process can be completed in around 4 to 6 months. However, sometimes, it can take significantly longer than this. A solicitor should be able to give you a better idea of what you could expect in your circumstances.
Under the Matrimonial Causes Act 1973, a party who wishes to commence the divorce process against their spouse would need to notify the Court that their marriage has irretrievably broken-down.
The party commencing the divorce process must remember that the parties have to be married for at least one year before they consider presenting their divorce petition to the Court. This One Year Rule is in place to discourage hasty decisions being made by the parties to end the marriage.
The Courts in England and Wales only have jurisdiction to entertain the divorce process if the Court has jurisdiction under Brussels II. Where no Court of a contracting member state has jurisdiction under that regulation and either party were domiciled or one of the parties is habitually resident in England and Wales on the date of when the divorce process began. The Court will allow the divorce process to be held in England and Wales.
To start the divorce process you must establish one of the five facts below:
1. Adultery the other party would have to be willing to agree that adultery has taken place;
2. Unreasonable behaviour of the other party;
3. The parties lived separate and apart for a period in excess of 2 years and both parties are in agreement to the divorce process;
4. The parties have lived separate and apart for a period in excess of 5 years and the consent of the other party is not required, and
Once you have made a decision on which one of the five facts you wish to proceed with, you will need to draft the divorce petition.
• Make sure you hold the original marriage certificate or an official copy.
• The party wishing to proceed with the divorce process will be known as the Petitioner and the other party i.e. your spouse will be identified as the Respondent.
• The Petitioner will need to complete an application for divorce, dissolution, judicial separation or separation order application (also known as a Form D8)
• Once the D8 has been completed. The Petitioner needs to file the D8 with the nearest Divorce Court.
• The Petitioner must file the D8 with sufficient copies for each party. With a Statement of Reconciliation (only if a solicitor is on Court record) and Court fee of £550.
• If you are on a low income, you may be entitled to a fee exemption, if so, you will need to complete a Fee Remission Form (Ex160) and file this with the D8.
• The Court will process the Divorce Petition and shall assign the parties with a case number.
• A copy of the Divorce Petition will be sent to the Respondent along with a Notice of Proceedings with an Acknowledgement of Service Form.
• The Respondent will have 7 days to return the Acknowledgement of Service Form informing the Court whether he/she wishes to either defend the divorce proceeding or is happy for the divorce to proceed undefended.
• In cases of an undefended divorce. The Petitioner will receive a photocopy of the Respondent’s completed Acknowledgement of Service Form. From here, the Petitioner will apply for the Decree Nisi.
• The Decree Nisi is an intermediary stage in the divorce procedure. It will be pronounced if both parties consent to the divorce and there is no reason for the Court to prohibit or delay the divorce.
In order to apply for Decree Nisi, the Petitioner needs to file the following documents to Court:
a) Application for Decree Nisi
b) Statement in Support for an application for Decree Nisi
• Once the Court has accepted the application for Decree Nisi, both the Petitioner and Respondent shall receive a Certificate of Entitlement. This document will confirm that you are entitled to a Decree Nisi and it shall inform both parties where and when the Decree Nisi will be pronounced and if the parties to the divorce process are required to attend. Ordinarily, the Decree is pronounced in open Court and the parties are not normally required to attend.
• The Court will confirm in writing once Decree Nisi has been pronounced.
• There is then a mandatory wait for a period of six weeks and one day before the Petitioner can apply for Decree Absolute, which will finally end your marriage.
• Both parties to the proceeding will receive a copy of the Decree Absolute.
Austin Kemp Solicitors are specialists in this area of law. We recommend that you try to settle your financial matters before applying for the Decree Absolute. You need to ensure your assets during the course of the marriage and after the divorce process are settled fairly.
Should you have any questions, please contact our office to arrange a consultation to discuss the prospects of your case.
Our expert family law solicitors can help you with a range of legal issues relating to the divorce process, including:
For more information call our divorce solicitors on 0845 862 5001 or email email@example.com.
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