Divorce and separation is never easy. You will be experiencing a wide range of emotions from sadness or confusion to fear and relief. It is common to feel a lot of conflicting emotions and it can be a real challenge to make important decisions. Our divorce solicitors cover Sheffield, Rotherham, Doncaster and throughout South Yorkshire.
The actual divorce process is fairly straightforward but complications do tend to arise in respect of children or financial matters.
There are basically 4 stages to a divorce. It is unusual to attend Court and the procedure can take approximately 4 – 6 months (although it may take longer whilst financial issues are resolved).
Who can start a divorce?
Anyone can start a divorce if they have been married for over a year. The person who starts the divorce is known as the Petitioner and other person is known as the Respondent.
Stage 1: The Divorce Petition
The Petitioner bases the divorce upon one of the facts for divorce to show that the marriage has broken down. The Petitioner completes the Divorce Petition and lodges it with their Marriage Certificate and the Court Petition fee which is currently £550.00. The Court will then issue the Petition and send it to the Respondent.
Stage 2: Acknowledgement of Service
The Respondent will receive a copy of the Petition and Acknowledgement of Service form (form D10). This is a short form which basically confirms whether the Respondent wishes to defend the divorce and that they have received the Petition.
Stage 3: Decree Nisi
Once the Acknowledgement of Service form has been received or we have other proof your ex-partner has received the papers, we can apply for Decree Nisi. Decree Nisi is the first stage in which a Judge will look at your application, consider the evidence available and if satisfied upon consideration of the evidence certifies that you are entitled to Decree Nisi. A Court will set a formal date for the pronouncement of the Decree Nisi in Court. It is not normally necessary to attend this Court hearing.
Stage 4: Decree Absolute
This is the final decree of the Court ending your marriage. The Petitioner can apply for it 6 weeks and 1 day after the date of Decree Nisi. If there is still outstanding financial aspects to your case it is usual to delay the applying of Decree Absolute until all aspects of your case have been finalised.
What if my ex-partner doesn’t return the acknowledgement or wants to defend the divorce?
If your ex-partner does not return the Acknowledgement form and you relied on 2 years separation or adultery for the basis of your divorce problems can occur. If you believe that your ex-partner may defend the divorce or simply ignore the forms that they receive it is advisable to Petition on the basis of unreasonable behaviour.
If your ex-partner doesn’t return the form then they can be served with the necessary forms personally using a Process Server or the Court Bailiff. There is usually an increase for around £105.00 plus VAT for this depending on where your ex-partner lives. This involves an individual physically handing the documents to your ex-partner. If your ex-partner does not respond after 7 days then it is usual to continue with the divorce. Notice of intention to defend must be given within 7 days of proof of service of the documents.
Defended divorces are rare. Your ex-partner would have to follow a strict procedure as it is costly and unlikely to achieve anything. The Court is looking for evidence that the marriage has broken down irretrievably and usually when someone defends the divorce they simply provide more evidence that the relationship has broken down.
Grounds to divorce
The only ground for Divorce is that the marriage has “irretrievably broken down”. To satisfy the Court there has been an irretrievable break down the Petitioner must prove one of the following five facts:
If your spouse is behaving in such a way that you feel you cannot be reasonably expected to continue to live with them, then you would be able to Petition on unreasonable behaviour. The test is subjective in that you need to show that you find it unreasonable to live with your ex-partner. Unreasonable behaviour does not need to consist of extensive violence, drug or alcohol addiction or extreme behaviour. A combination of behaviour is usually sufficient. At GWBHarthills we specialise in drafting Petitions that cause a minimum amount of upset whilst ensuring that you can still get divorced.
2 years separation with consent
If you have been separated from your spouse for 2 years and you both agree that the marriage has broken down, you can rely on this as one of the facts for divorce. On some occasions people have been living in the same household but have been separated for 2 years. It is still possible to obtain a divorce under this fact in such circumstances.
Contact GWBHarthills should you have any queries about whether or not you would be able to Petition on this basis.
5 years separation without consent
If you have been separated from your ex-partner for 5 years but will not consent to the divorce you can issue a Petition on this basis.
If your spouse has deserted you for at least 2 years before applying for a divorce and they have not attempted to return in that time you can rely on desertion. This is a fact rarely used.
Alternatives to divorce
Judicial Separation is an alternative to divorce. If you prefer to legally separate from your spouse without divorcing, you can apply for a Decree of Judicial Separation. This involves a Court procedure which is virtually identical to a divorce. The difference is that the Court pronounce a Decree of Judicial Separation rather than a divorce and therefore you and your spouse will remain married.