Divorce – The Facts

We hope that you will find this guide helpful.  It is designed to give you an insight into how the law in England and Wales applies to couples considering divorce or separation, and it deals with other family law issues as well. There are separate sections dealing with married and with unmarried couples.

When a relationship or marriage gets into real difficulty, it is vitally important to have access to relevant information, including counselling – and to try where possible to avoid matters deteriorating to the point where communication breaks down altogether.

An association of specialist family lawyers, Resolution sets out a code of conduct for its members, designed to avoid creating unnecessary or additional conflict, encouraging the parties to seek a constructive solution and to put the interests of any children first. When seeking legal advice on family matters it is therefore sensible to check that your chosen lawyer is a member of Resolution. (That code is printed in this guide at Section 9).

This website is produced by Family Mediation Scotland, a firm of Solicitors specialising in family law matters and whose family law Solicitors are all members of Resolution. Details of the firm and of the services we can provide are set out at the end of this guide.

obtain a divorce

To obtain a divorce, one of the spouses files at Court a Petition spelling out the reason why a divorce should be granted and setting out certain required background information. A Petition cannot be presented within 1 year after the marriage has taken place. The only “ground” for divorce is to show that the marriage has “irretrievably broken down”. The Court cannot find such breakdown unless the petitioner satisfies the Court of at least one of five “Facts”, namely (in simplified form):-

(i) adultery* or

(ii) unreasonable behaviour or

(iii) two years’ desertion or

by the other spouse

(iv) having lived apart for two years in circumstances where the other spouse consents to the divorce or

(v) having lived apart for five years (the consent of the other spouse being unnecessary)

[* N.B. In adultery cases the petitioning party also has to show that he or she finds it “intolerable” to live with the other person.]

It is not necessary to show that the “Fact” complained of caused the irretrievable breakdown of the marriage.

The Court is concerned to ensure, in a divorce, that the welfare of any children is protected, so the petitioning spouse must also file at Court a form setting out the detailed arrangements for looking after the children.

If the Husband and Wife agree that the divorce should go ahead undefended then it will be a relatively straightforward form filling process, which does not require any attendance at Court.

It is unusual for a divorce to be defended but, if it is, then a full hearing before a Judge will be necessary, with obviously increased costs (and unpleasantness) being incurred as a result.

A divorce has two main landmarks – the Decree Nisi and the Decree Absolute. The Decree Absolute marks the legal end of the marriage. Remember that the Decree Absolute itself does not resolve any other issues (e.g. finance). It does simply bring the marriage to an end.

When a divorce takes place there are many other matters to discuss and resolve – eg. what will happen to the family home, where will the children live (and with which parent), the future contact arrangements between the children and the other parent, how to divide any savings, investments and other assets, how to approach the question of pensions, whether any maintenance needs to be paid to the other spouse, for him or herself, how much child maintenance is to be paid by the absent parent, and so on? These issues are considered in more detail elsewhere in this guide. (see Index)

The principal aim in all cases is to try to arrive at a sensible and workable agreement between a Husband and Wife when a divorce (or separation) takes place. On financial issues, the law requires each party to give “full and frank” disclosure to the other of their financial position before discussions take place, so that a fair division can be arrived at.

These matters can be resolved in various ways, eg by sensible discussion direct between the parties, through mediation, by negotiations through, or with the assistance of, Solicitors (preferably Solicitors who are members of Resolution) or, failing agreement by one of these means then, by involvement of the Court and seeking a ruling by a Judge.

You should seriously consider, before embarking on a divorce or separation, whether counselling could not assist either in avoiding an unnecessary parting of the ways or, alternatively, in helping to reduce the pain of relationship breakdown, enabling you both to move forward through a separation with less hostility or acrimony.

Divorce – The procedure

If the parties agree that the divorce itself will not be contested, then the procedure is as follows:-

Step 1 – The Petitioner’s Solicitors send to the Court the Divorce Petition, accompanied by a Statement about the Arrangements for Children (with the Court fee and the marriage certificate).

Step 2 – The Court registers the case, processes the papers and posts to the other spouse (“the Respondent”) – or to the Respondent’s Solicitors – the Petition, the Statement of Arrangements for Children and an “Acknowledgement of Service” form.

Step 3 – The Respondent or his Solicitors fill in the Acknowledgement of Service, indicating e.g. that the papers have been safely received and read and that the case is not to be contested; the Acknowledgement is filed at Court.

Step 4 – The Court forwards the completed Acknowledgement of Service form to the Petitioner’s Solicitors.

Step 5 – The Petitioner’s Solicitors prepare an Affidavit (a sworn Statement) confirming on oath e.g. that the contents of the Divorce Petition are true. This is sworn by the Petitioner, whose Solicitors then file it at Court with a form requesting that the divorce papers be considered with a view to the granting of the first decree of divorce (the decree nisi)

Step 6 – The District Judge considers the filed papers and decides whether a decree should be granted.

Step 7 – Assuming that the District Judge agrees, then the parties are notified by the Court that the decree nisi will be pronounced by the Court at a certain date and time.

Step 8 – The Court pronounces the decree on the due date (no-one attends Court for this pronouncement as it is simply a formal step).

Step 9 – A sealed copy of the decree nisi is sent to both parties (or their Solicitors) by the Court.

Step 10- Once a clear period of 6 weeks has elapsed after the decree nisi date, (assuming there are no reasons to withhold from doing so) the Petitioner’s Solicitors can file at Court a form requesting the Court to grant the final decree (the “decree absolute“).

Step 11 – The Court sends the sealed decree absolute to both parties (or their Solicitors).

[ NOTE: It is possible for you to process your own divorce on a D.I.Y. basis, without the services of a Solicitor ]