The Divorce Process

If you’re going through the divorce process or considering filing for divorce, countless questions will be swirling around your mind.

Our guide, below, aims to answer these questions by explaining what happens in undefended divorce proceedings (that is, where both parties agree to the divorce).

The Petition

To commence the divorce procedure, a petition is filed with the court. The petition sets out in a standard form all relevant information about the marriage. Crucially, it confirms the marriage has “broken down irretrievably” and sets out the “fact” on which you are relying to establish that the marriage has broken down irretrievably. There are five possible facts which can be relied on, and these are:

  1. That the other party has committed adultery and you find it intolerable to live with the other party
  2. That the other party has behaved in such a way that you cannot reasonably be expected to live with the other party
  3. That the other party has deserted you for a period of more than two years
  4. That you and the other party have been separated for more than two years and that the other party consents to a divorce
  5. That you and the other party have been separated for more than five years

The Prayer

The last part of the petition is known as the prayer. The prayer is split up into three sections:

  1. The first section asks that the court brings the marriage to an end
  2. The second section deals with orders in relation to costs. If you’re seeking an order that the other party pays your legal costs in connection with the divorce, then this will be included in the prayer
  3. The third section deals with financial claims. It’s standard practice in every divorce petition to leave all possible financial claims in the petition even though you may not necessarily be seeking a financial settlement from the other party

At your first appointment with your solicitor, sufficient information will be taken from you to enable us to prepare the petition. Once the petition has been prepared, it will be read and checked by you before it’s sent to the court.

Other documents to be filed

While the petition is filed, the court will also require:

  • The original or a certified copy of the marriage certificate (which the court will retain)
  • The court fee or a fees exemption application form
  • In cases where court fees are paid, the court also requires a certificate as to whether the possibility of a reconciliation between you and your spouse has been discussed between you and your solicitor

Divorce Procedure

Once the above documentation has been filed with the court, a copy of the petition will be sent by the court to the other party.

The other party should return an Acknowledgement of Service to the court indicating whether they intend to defend the divorce. If the Acknowledgement of Service is not filed by the other party, then it will be necessary to prove that the other party has received a copy of the divorce petition by some other means – usually by way of a process server personally serving the documents. This will cause a brief delay in the divorce process.

Once your solicitor receives the Acknowledgement of Service indicating that the other party does not intend to defend the divorce, or if no Acknowledgement of Service is received, once we are able to prove service in some other way, we can proceed to the next stage of the divorce, which is the application for decree nisi.

If an Acknowledgement of Service is sent to the court by the other party and it indicates that the other party intends to defend the divorce, a different procedure applies and we will advise you further if that becomes necessary.

Decree Nisi application

You must provide a written statement confirming the contents of your petition are true. This statement and the application for the decree nisi are filed with the court.

A judge considers the papers and, assuming the judge is satisfied that there are sufficient grounds for a divorce, he or she will set a hearing date when the decree nisi will be pronounced at court.

When the decree nisi is pronounced, it’s not necessary for either party to attend court unless there is some dispute about costs. The decree nisi is not the divorce itself, it’s merely confirmation that you’re entitled to a divorce.

Decree Absolute

The final stage of the divorce is to apply for the decree to be made absolute (i.e. the divorce to be finalised). The first date upon which this application can be made is six weeks and one day after the decree nisi is granted. Sometimes you’ll be advised not to apply for the decree absolute – for example, if there are outstanding financial matters to be resolved.

The duration of the divorce process can vary considerably, as certain courts are very slow in dealing with their administration. In the more efficient courts, the divorce process usually takes around six months from start to finish. However, it can take much longer if either or both parties involved in the case fail to take the appropriate steps in the divorce within the time limit set by the court.

Financial arrangements on divorce

In most cases, it’s necessary to sort out financial matters during the divorce process. This usually happens whilst the divorce is progressing. Sorting out the financial matters can either be done by way of mediation, negotiation between the parties and their solicitors or, if no agreement can be reached, the court can resolve the financial dispute. Even if parties reach an agreement about financial matters, it’s usually advisable for that agreement to be set out in a document which is then approved by the court. This is called a consent order. When the parties are unable to agree about financial matters, one of them will need to make an application to the court to sort out the dispute.

Wills

It’s always a clever idea to consider making a will as divorce proceedings are ongoing or being contemplated. If you die without a will, and before the divorce is concluded, an amount of your estate will pass to your spouse under the intestacy rules. If you want to avoid this happening, you need to make a will.

It’s also important that you seek advice about your will following your divorce, as it may well affect the operation of any will which you already have.

If you need advice on the divorce process, or would like to talk to a solicitor about filing for divorce, contact our helpful and friendly family lawyers for a free initial consultation.

 

Family Law News