Stage three of the divorce process: the divorce petition
Each year in January our team sees a spike in divorce following the festive season. This year we’re taking you through the stages of divorce so you know what to expect if you find yourself in this situation. Stage three is divorce itself, and the following looks at what you need to know about the process of divorcing.
09 January 2019
If you’re satisfied that your marriage or civil partnership has irretrievably broken down, divorce proceedings can be made through the Family Court to formally bring a marriage or civil partnership to an end. Keep in mind that matrimonial proceedings cannot be commenced within the first year of marriage.
The ground for divorce
Under UK law there is currently no such thing as a ‘no fault divorce’. There is only one ground for divorce and that is that the marriage has ‘irretrievably broken down’. The person who starts the divorce petition is known as the ‘Petitioner’ throughout the proceedings and they must prove that the marriage has irretrievably broken down by establishing one of the following facts:
- Adultery - the Petitioner finds it intolerable to live the Respondent as a result of him/her committing adultery. Adultery is voluntary sexual intercourse between a man and women and therefore this fact cannot be used in same sex marriages or civil partnership.
- Unreasonable Behaviour - the Petitioner cannot live with Respondent as a result of their unreasonable behaviour.
- Desertion - the Respondent has deserted the Petitioner for at least two years.
- 2 Years Separation (with consent) - the Respondent accepts divorce proceedings on the basis that the parties have lived separately for two years.
- 5 Years Separation (no consent required) - parties have lived apart for a period of five years.
The person receiving the divorce petition will be known as the ‘Respondent’ in the divorce proceedings. If the Petitioner issues the divorce petition based on the Respondent’s adultery or unreasonable behaviour then a claim for legal costs and court fee (currently £550.00) can be made against the Respondent.
It is good practice to provide the Respondent with a draft copy of the divorce petition prior to submitting to the court. This will allow the Respondent the opportunity to seek their own legal advice and allow parties an opportunity to agree the content of the divorce petition prior to submitting the court.
Acknowledgment of Service
Once the Petitioner has filed the divorce petition to the court, this will be sent to the Respondent or their representatives with a notice of issue and an acknowledgement of service. The Respondent is required to return the completed acknowledgement of service to the court. If the Respondent wishes to file a defence to challenge the divorce petition then this must be done within 7 days of receiving the paperwork.
If the Respondent fails the return the acknowledgement of service, the Petitioner will be required to look at alternative methods of service, such as:
- Personal service by a bailiff;
- Service by an independent process server; or
- Application for deemed service
Application for Decree Nisi
Once the court has confirmed that the papers have been served on the Respondent, the next step is for the Petitioner to proceed in making the application for the Decree Nisi. The court will consider a parties application alongside the divorce petition. The court will confirm whether they are satisfied that the marriage has irretrievably broken down and allow parties to formally dissolve their marriage.
Both parties will be notified that a hearing will be listed at their local family court for pronouncement of the Decree Nisi. Parties are not generally required to attend the hearing, although, if there is an issue with costs then a legal representatives should be arranged to attend the hearing.
Once the court has pronounced the Decree Nisi, the Petitioner must wait for 6 weeks and 1 day before they can apply for the decree to be made absolute. Alternatively, if the Petitioner fails to make the decree absolute within 12 months then the Respondent is able to make an application to finalise the divorce proceedings. Once the court has confirmed the decree absolute has been granted this will formally bring the parties marriage to an end.
Until the Decree is made absolute, parties are still married and therefore, all protection under the still applies. Therefore, it is often advised that clients shall hold off applying for the Decree Absolute until the matrimonial finances has been resolved and approved by the court.
All information was correct at the time of publication.