You Wish to Get a Divorce: Grounds, Procedure and What to Do During the Process

THE RIGHT TIMING

First, are you sure you want to divorce? Don't rush into a decision.

One first step could be couples counselling. You can find counsellors in your area.

If you have children there is support available to help you figure out the best way to tell them.

You cannot begin the divorce process within the first year of marriage. If you separate during this time you will not be able to issue a divorce petition. But you may have other options, in particular, you can apply for a formal legal separation, called a judicial separation.

THE PROCEDURE

You will be able to start divorce proceedings here if:

  • when you begin divorce proceedings, both you and your partner are mainly resident in England or Wales

  • both you and your partner’s last main residence was England or Wales and one of you still lives there when divorce proceedings begin

  • at the time the divorce proceedings begin, the respondent to the divorce is usually resident in Wales or England

  • for 12 months prior to the start of divorce proceedings, the partner applying for the divorce (petitioner) has been habitually resident in Wales or England

  • for the 6 months before the start of divorce proceedings, the petitioner has been habitually resident in England or Wales, and is also domiciled there

  • you and your partner are domiciled in England or Wales when divorce proceedings begin

  • no other court of a “contracting state” to Brussels IIA convention (that is any EU nation apart from Denmark) has jurisdiction, and either you or your partner is domiciled in England or Wales when divorce proceedings start.

Domicile is a concept peculiar to England and Wales. It refers to the country that a person treats as their permanent home, or lives in and has a substantial connection with. Your domicile of origin is the country where you were born. Under English law it is also possible to have a domicile of choice, the place you consider to be home. This can be a country you have not lived in for many years.

If a person is able to meet one or more of these requirements then there will be jurisdiction in England and Wales for that person to start divorce proceedings.

As this is a complex area, we would recommend you obtain expert advice.There is no such thing as divorce by mutual consent in England. One party must issue a petition alleging that the marriage has irretrievably broken down.

In order to prove that the marriage has completely broken down and is impossible to fix, the person starting the divorce process (the petitioner) will need to establish one or more of the following five facts:

  • the respondent (the other spouse) has committed adultery. There is no need to name the other person;

  • the respondent has behaved unreasonably. The "behaviour" in this case need not be serious, but it cannot be trivial;

  • the respondent has deserted the petitioner for two years or more (this is very rarely used);

  • the couple have separated and have been living apart for two years, and the other spouse agrees to the divorce;

  • the petitioner has lived apart from the respondent for five years or more. In this case, no consent is needed from the respondent.

To start the divorce proceedings, you will need to complete a Divorce Petition and send three copies to your local Divorce Court.

The Petition is a standard form which can be obtained here:
https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1115

To find your local Divorce Court, you can put the postcode of your matrimonial home into the court service website:
https://courttribunalfinder.service.gov.uk/search/aol

You will also need to include your original marriage certificate, and pay a court fee. The current fee is £550.

You can find further information here:
https://formfinder.hmctsformfinder.justice.gov.uk/ex50-eng.pdf

We recommend that you take legal advice on the Petition before sending it to court, to ensure that you have completed it correctly.

The court will "issue" your Divorce Petition, and send your spouse a stamped copy, together with an Acknowledgement of Service form to complete. Your spouse will need to complete and return the Acknowledgement of Service form to the court with 7 business days beginning with the day after they received the Petition. If they are out of England and Wales, they will get a longer period. This will be stated on the information that they receive. The address to return the form to is also stated in this information.

This form is not available online – they must complete the hard copy sent to them by the court.

It is important that they indicate on this form whether they agree to the grounds you have stated for divorce.

The court will then send you a copy of the completed Acknowledgment of service form. You then use this to make an application for Decree Nisi.

This application is made in a standard form, which you can view and download here: https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=154.

You must attach a Statement in Support to this application. Again, a standard form is used, but which one you use depends on the fact you replied upon in your Petition:

If the respondent does not complete and return the Acknowledgement of Service form, the petitioner can make an application for deemed service. Deemed service is the date the document should have been received, according to the court’s estimation.

The petitioner must prove that the respondent received the Petition. If the court served the Petition, then it will have a record of the date of posting or leaving, delivering or collection by a relevant service provider. This can be requested from the court and stands as proof of the respondent’s receipt of the document, without the need of a witness statement or further information.

Once the petitioner has an Order for deemed service, despite not receiving a completed Acknowledgement of Service form, they can apply for Decree Nisi.

A Decree Nisi is not the end of the marriage – it is a provisional divorce order. You are still married at this stage and are not free to remarry.

It simply means that a judge has looked at your Divorce Petition, and agrees that you are entitled to a divorce on the basis set out in your Petition. The Decree Nisi is pronounced in open court, which means that in theory anyone (you, your partner or any member of the public) can attend, but there is no need to attend (and it is very rare for anyone to do so). If you or your spouse were to die at this stage, the surviving spouse would still be a widow or widower.

Importantly, once the Decree Nisi has been pronounced the court is able to make orders to resolve your financial affairs.

Once Decree Nisi has been pronounced, the petitioner (the person who began the process) has to wait a minimum of 6 clear weeks before applying for Decree Absolute. The decree absolute dissolves the marriage.

The application for Decree Absolute is a simple form:

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1114

which you complete and send to the court. However, it may be appropriate to wait until financial arrangements have been resolved before you apply for Decree Absolute, as (for example) following Decree Absolute you would no longer receive widow's/widower's benefits under any pensions owned by your partner in the event of their death.

If the petitioner does not apply for Decree Absolute, it is possible for the respondent to apply, but only after 3 months have passed from the date that the petitioner was first able to apply.

Whereas a petitioner's application is dealt with on paper, and is processed quite quickly, a respondent's application will usually be dealt with at a court hearing, and takes longer.

THE FAMILY HOME

THE RIGHT TO LIVE IN THE HOUSE

Knowing whether you should move out of the family home during the divorce depends. Things that you will need to consider are:

  • whether you or your partner have somewhere else to go, what might be best for your children and your safety. If you are in an abusive relationship you can obtain an occupational order, which could exclude your partner from the home;

  • What would you like to happen to the home in the future - moving out will not stop you from having the home as part of your divorce settlement. However, it may make things more difficult as it could make it harder to prove that you need that
    property going forward.

If your spouse is the sole owner of the house where you last lived together as a married couple you have a legal right to live in the house, called Matrimonial Home Right.

To protect this right, you must register it at the Land Registry. It is free to do so. You will need to complete this form:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/601612/HR 1 2017-04-01_.pdf

If the property is unregistered, (which will only be the case if it has been owned for many years) it is still possible to register a Home Right but the process is different. If you think this applies to you, contact a lawyer.

Registering your Home Rights will make sure that if your spouse tries to sell the property, the potential buyer will be aware of your interest.

This is only valid whilst you are married, that is until Decree Absolute has been issued, as your right to live in the home stems from your marriage.


HOW TO PROTECT THE RIGHT TO LIVE IN THE FAMILY HOME? OCCUPATION ORDER

An occupation order manages who can live in the family home.

In ordinary circumstances, both of you have the right to remain living in the matrimonial home until your financial claims against one another are resolved. However, in certain circumstances, one of the parties can apply for an Occupation Order. If the order is granted the court can:

  • Exclude one party from the family home, even if they are a joint owner.

  • Regulate the occupation of the home by either or both the parties, which means it can set times when you or your spouse (or both of you) can use the property and limit which parts of the home they can use.

  • Exclude a party from the entire home and an area around it. For example, the non- resident ex-partner is not allowed within 100 metres of the property.

For an application to be successful it must be against a respondent who is an ‘associated person’.

Associated persons are:

  • Someone to whom you are or have been married

  • Someone with whom you have or have had a civil partnership

  • Someone you have lived with as though you were married

  • Someone to whom you are or have been engaged (if the engagement has been terminated, the application must be within three years of the termination)

  • Someone who has lived in the same household as you, except an employee, tenant, lodger or boarder

  • Certain relations

  • Someone with whom you have had a personal intimate relationship for a significant amount of time

  • Someone who is the other parent of your child or who has parental responsibility for your child.

The first thing you’ll need to do is fill in the application form. You can see a copy and download the form here:

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1117

The form asks for your:

  • Your name, address and date of birth. If you do not wish to reveal any contact details, complete Form C8: https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2216.

  • The name and address of the person you are seeking the order against, the ‘respondent’.

  • If there are already family proceedings involving you and the other person, the name of the court and the case numbers, if known, and the type of case (for example, an application for residence of a child).

  • If there are criminal proceedings and the other person was arrested and charged, the name of the criminal court and case number if known, and the date of the hearing or trial.

  • If you are applying for an occupation order, in which you are asking the court to consider changing a rental or mortgage agreement, a copy of the agreement may help the court.

You’ll also need to write out a ‘witness statement’ and attach it to the form. This is your chance to explain what has happened and why you need the occupation order. Sign and date your witness statement and write ‘I believe that the facts stated in this witness statement are true’ at the bottom.

Send 3 copies of your application with copies of your witness statement attached to your nearest court.

You can find your local court at https://courttribunalfinder.service.gov.uk/search/

They will arrange for a copy to be sent to your ex-partner. They will ask them to write their own witness statement.

The court will get in touch with a date for the court hearing. If you’re worried about being in court with your ex-partner, you can ask to have the hearing in separate rooms.

The court applies two tests to decide whether to grant the order:

The balance of harm test – the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm at the hand of the respondent if an order is not made.

There are however exceptions to this test. If it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by them is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.

In cases where it can be established that there is a significant risk to a child, the interests of the child will be the court’s main consideration.

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a) The core criteria test – the court can grant an occupation order having considered circumstances such as the below:

(i) the housing needs and resources of each of the parties and of any relevant child;

(ii)  the financial resources of each of the parties;

(iii)  the likely effect of any order, or of any decision by the court not to grant the order on the health, safety or well-being of the parties and of any relevant child; and

(iv)  the conduct of the parties in relation to each other and otherwise.


IN CASE OF EMERGENCY RELATING TO THE OCCUPATION OF THE FAMILY

HOME

You can apply for an emergency order to be made. In section 3 of the form there is a box you can tick to flag the order as an emergency. If you ask for an emergency order you will need to explain in your witness statement that your ex-partner is likely to:

  • deliberately avoid or ignore the occupation order

  • physically harm you or your children; or

  • stop you from applying if you wait longer.

  • Your hearing will be held at your nearest family court. At the end of the hearing, the court will either decide:

  • that your ex-partner must promise to do or not do something - for example let you stay in the home

  • that they need more information – you might get a short-term order to protect you until you provide this information

  • to issue an occupation order.


FINANCIAL RELIEF

Financial relief following the breakdown of a marriage is "ancillary" to the divorce proceedings. This means that when a divorce Petition is issued here, either party has the ability to apply for financial relief from the court. The English court will apply English law to the resolution of the financial issues, regardless of the nationality of the parties.

 

DURATION OF THE DIVORCE PROCEDURE

How long does it take to get divorced? Divorce is largely administrative process. Unless it is contested, which is unusual, the divorce process will take around 4-6 months. However, it is not uncommon to delay the Decree Absolute until financial matters have been resolved.

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