When a marriage is at an end, the ‘empty shell’ can be legally disposed of by presenting a divorce petition to the Family Court. Providing the petition remains undefended, the procedure is very straightforward and should not cause any difficulties. So far as dissolving a marriage (or civil partnership) is concerned, it is largely a form filling exercise, which at most will only call for a little guidance to enable you to obtain your divorce. Any problems which arise are likely to relate to property and financial issues or the arrangements for the children.In order to obtain a divorce you must satisfy the court that the marriage has irretrievably broken down. This is done by establishing one of what are often known as the ‘five facts’:
1. The first of the five facts is adultery. The petitioner must show that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. Therefore, you must show not only adultery but also allege that you find it intolerable to live with the respondent. It is not, however, a requirement that the intolerability is a consequence of the adultery.
2. The second and most common fact is unreasonable behaviour. The petitioner must show ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.
This is different from the question of whether the respondent has behaved unreasonably. The question for the court is whether the respondent has behaved in such a way that this petitioner could not reasonably be expected to live with this respondent. A subjective test.
3. The third ‘fact’ is desertion, which is rarely applicable.
4. The fourth is 2 years separation, where you and and your spouse have lived separately for over 2 years and you both agree to a divorce.
5. The fifth and final fact is 5 years separation, when consent is not required.
There are some special rules which apply to divorce petitions:
- A petition for divorce (but not judicial separation) cannot be filed during the first 12 months of a marriage.
- The reconciliation provisions. These apply to the behaviour fact, and in a slightly different form to adultery petitions: if a petition is not issued within 6 months of a fact relied upon, this fact may be disregarded.
To petition for divorce you must file at court:
- a combined divorce petition and prayer for financial claims
- the original marriage certificate (not a photocopy) or a certified copy
- the court fee. At present, this is £410. However, fee exemptions or remissions are available for those on low incomes or state benefits.
The divorce documents will be checked by the court staff, and a copy of the divorce petition sent to the respondent with a form prepared by the court for him or her to acknowledge service of the petition. They must return this form to the court within 7 days, saying whether they accept that the marriage has irretrievably broken down and will agree to a divorce.
If the acknowledgment of service is returned indicating an intention not to defend the divorce, the court will send a copy of the acknowledgment to the petitioner, who must then swear a statement to confirm that what they have said in the divorce petition is true. This takes the place of a formal attendance before a judge at the court.
Once the statement has been signed, the divorce is entered for pronouncement of a decree nisi. There is no easy going back once this has been done, and here will be no need for anyone to attend court.
You will not, however, be finally divorced at this stage, as the decree nisi must be made absolute. This can be applied for on further application after 6 weeks following the making of the decree nisi.
On pronouncement of decree absolute, the marriage is dissolved, and you and your former spouse will be free to remarry if you so wish. The pronouncement of the decree absolute has an important effect on any will made by the parties, and consideration should always be given to making a new will. Also, it is essential that any applications to the court for a financial order is made before decree absolute. Although you will be divorced, the financial links of the marriage will continue until dismissed by an order of the court.
Defending a petition for divorce
It will sometimes be the case that the respondent to a divorce petition issued by a spouse will wish to defend the petition and not agree to a divorce being granted. It is possible to defend a divorce action on a number of grounds. These include a defence on the basis that the marriage has not irretrievably broken down, that the facts alleged are not true, and that in the case of a petition based upon 5 years separation that hardship would result.
What do I need to think about if our relationship is in trouble and it looks like we are going to split up?
Before deciding finally that your relationship is over, you should discuss this with family and friends and consider very carefully what life will be like as a single person. It may not be as rosy as you’d think, especially as a single parent. Consider speaking to a relationship counselor such as at Relate. If having taken your time and thought things through carefully your decision is final, it will be time to tell your partner and children. How you tell particularly the children is most important. You will need to explain the practical arrangements to the children, and whenever possible this should be done together by both parents.
I have decided that I now want to divorce my wife on the grounds of her adultery a year ago. Is this possible?
You will not be able to rely upon adultery or unreasonable behaviour which happened more than six months ago, as you will be taken to have forgiven what happened.
Do I have to agree the arrangements for the children before I can get a divorce?
You should certainly discuss the arrangements to be made for the children with your spouse, but it is not strictly necessary from a legal viewpoint. The court does not now consider the children arrangements before granting a divorce. If the arrangements for the children cannot be agreed, you will have to make a separate application in the divorce proceedings for a child arrangements order and consider mediation.
Does it matter if we were married abroad?
It does not matter where you were married, as long as the marriage was valid under the laws of the country where you married. If the marriage certificate is in a foreign language, you will need to provide a certified translation.
Does it matter if either my spouse or I are foreign nationals?
This does not matter. The test is whether you or your spouse are habitually resident in England and Wales..