You may be unsure as to whether you wish to obtain a divorce or merely to separate. Should you decide you do not want a divorce because either you are not ready for such a final step, or for example, you do not want a divorce for religious reasons, then you may choose merely to regularise your separation.
Each option has different pros and cons with different legal implications. Seeking advice at an early stage can help you to find out what is the best option for you.
As specialist divorce solicitors we are able to provide you with the best way to proceed to suit your particular needs and circumstances.
Divorce - What do I need to prove?
In order to obtain a divorce you will need to prove that your marriage has broken down irretrievably.
Divorce proceedings may only be started after one year from the date of marriage.
To obtain a divorce in the English Courts, it is not necessary for both you and your spouse to live in England and Wales - only one of you must do so.
It will usually take around six months for a divorce to be finalised. It will usually not be necessary for either yourself or your spouse to attend court in relation to the divorce proceedings.
Grounds for Divorce
There is only one ground for divorce and that is that the marriage has broken down irretrievably. One of five facts must be proved to satisfy the Court that the marriage has broken down irretrievably. Three of these facts depend upon you and your spouse having been separated for two years or more, namely:
- That you and your spouse have lived apart for a continuous period of at least two years immediately before the start of the divorce and your spouse consents to a divorce.
- That you and your spouse have lived apart for a continuous period of at least five years immediately before the start of the divorce (your spouse's consent will not be necessary).
- That your spouse deserted you for a continuous period of at least two years immediately before the start of the divorce. To prove the fact of separation in the above, it is not always necessary for you to have been living in separate accommodation for two years. The Court may be satisfied if you can prove that for some or all of this period you have been living separately (eg not as husband and wife) within the same household. The remaining two facts which are most commonly relied upon to satisfy the courts that the marriage has broken down irretrievably are:
- Unreasonable Behaviour - This is where your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. For behaviour to be unreasonable it does not have to be as extreme as violence, drug or alcohol abuse. It can consist of milder allegations such as your spouse being unsupportive, critical or spending insufficient time at home.
- Adultery - This is an act of sexual intercourse with a person of the opposite sex. For adultery to be relied upon it must have taken place no more than six months before separation or at any time following separation. It is not necessary to name the person with whom your spouse has committed adultery.
Once we have obtained your marriage certificate or certified copy, we can draft your divorce petition (or application). After you have approved the documentation, the procedure is as follows:
- The divorce documentation will be sent to the Court with a fee (currently £550).
- The court will send the document to your spouse with an Acknowledgement of Service Form.
- Your spouse has eight days to complete and return the form to the Court stating whether they agree to the divorce or intend to defend it.
- In the event that your spouse fails to return the form to the Court within 21 days, we may have to personally serve them with the divorce documents.
- Once we have received the Acknowledgement of Service form from the Court or proved that they have received the divorce documents, we can apply for the Decree Nisi. A statement which you will have to swear will be prepared and sent to the Court with the application for a Decree Nisi.
- The Court will fix a date for the pronouncement of the Decree Nisi. You will not generally be required to attend court on this date. The District Judge will look at your petition and decide if you are entitled to a divorce. He/she will also check that there is no dispute raised over the arrangements for the children. In remote cases, the Judge may ask to see you and your spouse to discuss the arrangements for the children.
- Six weeks and one day following the date of the Decree Nisi, you may apply for the Decree Absolute. The Decree Absolute finally dissolves your marriage. Again, you will not be required to attend Court for the Decree Absolute.
Finances within Divorce
Many people expect the divorce itself to end all financial ties with their ex-spouse. This is not the case. You each have continuing claims which only the courts can deal with. It is highly advisable to seek legal advice on what you should look out for and what you can do to protect yourself in dealing with financial and property related issues.
Townsend Family Law Solicitors in Essex, serving Essex and Hertfordshire including Epping, Harlow, Waltham Abbey, Hertford, Enfield, Loughton, Woodford and surrounding areas.