In the UK there is currently no such concept as “no-fault” divorce which means that in order for a couple to divorce or have their civil partnership dissolved it must be established that the marriage or civil partnership has broken down irretrievably – in other words so that there is no hope of reconciliation. To prove this you must rely upon one of five facts which are as follows:
- Separation for two years, with the consent of the other party
- Separation for five years, the consent of the other party is not necessary
- Unreasonable behaviour
Divorce – Adultery (Matrimonial Causes Act 1973 s1(2)(a))
If you intend to petition on this ground ideally there needs to be some acknowledgement from the other party that they have committed adultery, preferably in writing. The other person involved can be named in the divorce petition, but this is unusual. Without any acceptance that adultery has taken place it may be easier to petition on the ground of unreasonable behaviour, although the adultery could be relied upon in support of an unreasonable behaviour petition.
Divorce – Unreasonable behaviour (Matrimonial Causes Act 1973 s1(2)(b))
The most common ground for a divorce petition is the unreasonable behaviour of the other party; however, this does not have to mean extreme misconduct; it can often be an accumulation of small issues which have built up over time. We specialise in drafting unreasonable behaviour petitions sensitively, to ensure that the petition will be acceptable to the court, but without provoking an adverse response from the defending party. It is possible to proceed with an unreasonable behaviour petition where the separation is amicable and we usually work with both parties to try and agree particulars of behaviour before issuing the petition wherever possible.
Divorce – Desertion (Matrimonial Causes Act 1973 s1(2)(c))
This may be pleaded where one party has determined to leave the marriage for a period in excess of two years. It can however be difficult to prove that the party had a settled intention to do so throughout that period and for this reason desertion is very rarely relied upon in support of a divorce petition.
Divorce – Separation (Matrimonial Causes Act 1973 s1(2)(d)) and (Matrimonial Causes Act 1973 s1(2)(e))
If there isn’t enough evidence of bad behaviour, or adultery, then you cannot divorce until at least two years have passed from the date of your separation. However, separation can still occur while the parties to a marriage are living in the same property, provided the Court accepts that for the necessary period they have lived separate lives, for example by sleeping in separate rooms, eating different meals, doing their own chores and socialising independently of each other. We can help to carefully draft a petition to establish these facts, so that they are accepted by the court. If there isn’t enough evidence of separation then you may have to wait to start divorce proceedings, but in some circumstances you can formalise the terms of your separation to make the divorce process easier when you come to issue your petition.
If you want to divorce two years after separating then you must obtain the agreement of the other party, without this the divorce cannot go ahead (in which case you may have to think about using a different ground such as unreasonable behaviour). If however, there has been at least five years separation then the consent of the other party is unnecessary.
Many divorcing couples prefer to rely upon one of the separation grounds as they do not then need to allege blame for the break- up of the marriage.
Once we have met with you, taken your full instructions, and advised on the grounds for divorce, we will draft the petition, including particulars of behaviour, and write to the other party informing them of our instructions and your intention to proceed with a divorce. We will also send the other party a copy of the divorce petition for their information and comment, so they know what to expect when the petition is issued .
When the petition is agreed, or if there is no response in the specified time limit, the petition is then sent to the Court to be issued. The Court will consider the petition and, if it finds the content to be in order will then send a copy of the petition to the other party along with an Acknowledgement of Service for them to complete. This document asks the Respondent to confirm that they have received the divorce petition, whether they intend to defend the divorce, and if they have any objection to paying the costs (if these have been requested). Once the Acknowledgement of Service has been completed the Respondent should return this to the Court to enable the divorce to proceed.
On some occasions, the Respondent will fail to return the Acknowledgement of Service. If this happens, it may be necessary to either apply to the Court to deem the petition served (if receipt has been informally acknowledged), to dispense with service, which allows the divorce to continue without an Acknowledgement of Service, or it may be necessary to instruct a process server to hand deliver a copy of the petition to the Respondent. We can advise you on the steps and any additional cost of the same if this becomes necessary.
Once the Acknowledgement of Service has been completed and returned to the Court you will then be able to apply for your decree nisi, and we will complete all of the paperwork to apply for this. The decree nisi is the administrative stage of the divorce. The Court will consider whether you have established your case for divorce and, if so satisfied, will provide you with a certificate of entitlement to decree nisi fixing a date on which the decree nisi will be pronounced. You do not need to attend court for this unless you are a Respondent to the divorce and are challenging the award of costs. Once the decree nisi has been pronounced you will receive another document from the Court confirming the decree has been granted.
After the decree nisi has been pronounced you must wait at least six weeks and one day before you can apply for the decree absolute, or final stage of the divorce. The Respondent to a divorce can apply for the decree absolute but only if 3 months have passed since the date on which the Petitioner could have applied. In certain circumstances, where there are unresolved financial matters arising from the divorce, it is prudent to wait to apply for decree absolute until after the financial matters has been resolved and the Court has made an order in respect of the same.
At Wannops we offer a fixed fee divorce package which includes drafting the petition, corresponding with the other side and the Court, and completing all necessary paperwork to progress the divorce. The fee depends on the basis on which the petition is being brought; we are happy to provide you with more information on our fixed free divorce structure when you contact us.
In every divorce there is a Court fee of £550 payable however, you may not have to pay the whole of the fee if you are in receipt of a low income. We can discuss the possibility of securing a fee remission with you if you think that you may qualify.
Respondent to a divorce
We can also assist you if you have been served with divorce papers and need to complete the Acknowledgement of Service. We can meet with you, consider and advise on the petition you have been served with, and assist with completion of the Acknowledgement of Service for a fixed fee.
In some circumstances parties will agree that the marriage or civil partnership has come to an end, but they will not be quite ready to take the formal step of divorce or dissolution. This is particularly common in cases where parties are waiting for the two year period to pass to enable them to lodge a petition on the basis of two years’ separation with consent. However, even though it might not be desirable for a divorce petition to be issued, there may be financial matters which require immediate attention, and possibly issues regarding children which cannot be postponed. One way in which these arrangements can be formalised in advance of any court proceedings is by concluding a separation agreement, which is a written document setting out the practical arrangements for the parties to manage their affairs until they are divorced. It is advisable that both parties take separate legal advice on the matter to ensure they are happy with all of the terms reached.
A separation agreement is signed as a deed by both parties in front of witnesses which makes it a binding document. However, it is not formally approved or sealed by the Court and its enforceability could be questioned in front of the Court. To ensure that a separation agreement is as binding as possible both parties would need to give full and frank disclosure of their financial situation to the other party.
If your marriage or civil partnership has broken down and you wish to discuss the possibility of a divorce or dissolution or you wish for some advice about your options on separation, please speak to our experienced team today on 01243 778844 (Chichester), 01903 228200 (Worthing) or 01243 864001 (Bognor Regis).
A separation agreement gives both parties clarity and certainty in relation to the division of financial assets in advance of any court proceedings, and can make the divorce process quicker and smoother once the petition is issued. It can also make the divorce process less stressful, especially if there are children involved.
When a separation agreement is concluded, a draft consent order can also be drawn up to reflect the financial terms of the separation agreement. When it comes to issue the divorce or dissolution proceedings a financial order can then be sought to reflect the terms of the separation agreement which then makes it binding upon you. So concluding a separation agreement can save time and money at the divorce stage.
At Wannops we will always try to fix the costs of the divorce, so you know how much you have to pay up front. Usually our fees are between £550 and £650 plus VAT, plus the court costs. Of course if the other party doesn’t co-operate these fees can rise, but usually the court will then order the other person to pay towards your costs, especially if he or she has conducted their case unreasonably.
You can ask the court to deem service if the other party has informally admitted receiving the papers, or for an order serving the papers on someone you know is in touch with the other party. In some cases service can be dispensed with, if for example you’ve tried everything you can think of but can’t locate the other party. Or the papers can be handed to the other party personally.
It is possible to defend a divorce if you don’t agree with the grounds relied upon, but this is very rare. The reason is because if the divorce is successfully defended the result is that the parties remain married to each other, a result which neither is likely to want. It is far better therefore to negotiate alternative grounds which you can both agree upon.
It is possible to ask the Court to order that the other side pays for the costs of the divorce either in part or whole. We will also correspond with the other side to try and secure agreement to paying towards the costs of the divorce prior to issuing the petition. You can also ask for the other side to pay for the costs of the divorce if there is a delay in returning the Acknowledgement of Service or if they seek to defend the divorce.
It depends on whether there are any delays with the Court processing the paperwork, the Respondent returning the Acknowledgment of Service and how swiftly any financial matters are sorted. However, the average time for a divorce to be completed is 6-9 months.