Advice on Divorce
We understand that the breakdown of a relationship is a difficult time and one of the issues for many is financial uncertainty. At Napthens we know the question of cost is often a concern for those considering divorce, therefore our lawyers aim to provide clarity with a fixed fee service, so you know what to expect.
Please read our Step by Step Guide to Divorce which may answer some of your questions regarding what to expect during the divorce process.
What are grounds for divorce?
To obtain a divorce it must be established that a marriage has irretrievably broken down.
The law prescribes five possible ways in which the irretrievable breakdown of a marriage can be proved. These are commonly known as the grounds for divorce.
The vast majority of divorce cases are undefended (meaning that the other party does not challenge the application) and the proceedings are processed as a paperwork exercise without the necessity of either party attending court.
In this case your spouse has committed adultery and you find it intolerable to live with them. Proof or an admission by your spouse is required for grounds of adultery. Without an admission it can be difficult to prove adultery, in which instance you should seek legal advice. It could be for example, that grounds of unreasonable behaviour are used instead. Adultery can be used as grounds for divorce even if you and your spouse still live together. If you carry on living with your spouse for more than six months after discovering adultery, generally you cannot use these grounds (unless the adultery is continuing).
Your spouse has behaved in such a way that you can’t reasonably be expected to live with them. All manner of allegations can be covered by ‘unreasonable behaviour’ and this is the most common grounds for divorce in England and Wales. The reasons for your allegation don’t need to be severe but your petition for divorce needs to clearly display the main things that have made your spouse difficult to live with.
Examples of unreasonable behaviour may include (but not be limited to):
- Unreasonable financial responsibility – gambling, refusing to pay household bills such as mortgage, refusing to seek employment, unreasonable debts
- Physical, emotional or verbal violence, controlling or threatening behaviour
- Unreasonable social behaviour – alcohol/drug abuse, obsession with anti-social behaviour such as computer game
Desertion for a continuous period of at least 2 years
Where your spouse has left you without agreement or good reason, for a continuous period of 2 years or more.
2 years separation coupled with consent
Sometimes referred to as ‘no-fault’ divorce, in this case you have been living separately from your spouse for more than 2 years and you both agree to the divorce. Although you can have lived together for periods of time in the lead up to the divorce petition, these periods can’t add up to more than six months in total, and the period of time apart must add up to at least two years in total.
5 years’ separation
In this case you have lived apart from your spouse for more than five years. It isn’t necessary for your spouse to agree to the divorce (although they can can object if it will cause them ‘extreme’ difficulties – such as financial issues).
What steps do I need to take to get a divorce?
The vast majority of divorces are undefended and the steps listed here apply to undefended divorces.
A different procedure applies where a divorce is defended – if this is the case please contact us.
Step 1 – Preparing and filing a divorce application
The applicant completes an application form setting out which of the five grounds for divorce is relied upon. The application is sent to the court with the marriage certificate and court fee.
Step 2 – Service of the Application
The court normally sends out papers to the respondent with an Acknowledgment of Service form which the respondent should complete and return. The applicant can’t proceed until the court is satisfied that the respondent has been served – this is normally proved by completing and returning the Acknowledgment of Service form.
If the respondent fails to return a completed form it will be necessary to make other arrangements. This is usually personal service of the papers i.e. arranging for either the court bailiff or a process server to hand a further set of papers to the respondent. The person who effects service will then provide a statement to the court confirming they have done so and the court will treat the papers as served. Failure by the respondent to file the Acknowledgment of Service will inevitably result in some additional delay and costs.
Step 3 – Acknowledgment of Service of the Application
The respondent is required to return the Acknowledgment of Service form within 7 days, confirming receipt and indicating whether they wish to dispute the proceedings and whether they are prepared to pay the divorce costs.
Step 4 – Applying for Decree Nisi
Once service is proved (either by receipt of the Acknowledgment of Service or Statement of Service) the applicant then applies to the court for a Decree Nisi. There are two forms – the application itself and a Statement in support, confirming the truth of what is in the divorce papers. The Statement in support has to be sworn under oath. This can either be done at the court office or by a solicitor (other than the solicitor acting on behalf of the Applicant).
Step 5 – Pronouncement of Decree Nisi
After lodging the request for Decree Nisi there is usually a waiting time while the Judge considers the papers. If the Judge is happy with the documentation the court will send out notice of a date when a Decree Nisi will be pronounced in court. It is not usually necessary for the parties to attend Court when the Decree Nisi is pronounced, although this may be required if there is a dispute about costs.
Step 6 – Application for Decree Absolute
Six weeks and one day after the Decree Nisi is pronounced the applicant can apply for the Decree Absolute. There is a standard application form. Only when the Decree Absolute has been issued is the divorce finalised. Parties sometimes prefer to defer applying for the Decree Absolute if financial aspects of the divorce have not been resolved and will await an outcome on finances before finalising the divorce.
We offer a fixed fees service for divorce – giving you peace of mind at an otherwise difficult time. Talk to one of our family lawyers in confidence about divorce or to arrange a no obligation initial consultation at any of our offices – Preston, Blackburn, Kendal, Southport or Blackpool.