How do I get a divorce?08 Jan 2021 // Insights
Family Partner Neil Russell and Solicitor Ffion Greenfield explain the process for how to get a divorce and share some guidance on what you will need...
Are you ready for a divorce?
Firstly, let’s take one step back. It’s important that you are sure that divorce or separation is really the right way forward for you.
There are three options available for all couples:
- Firstly, you can do nothing and take some time to see if the marriage can be saved.
- If the marriage cannot be saved, then there is the second option of ‘separation’. The terms of a separation can be formalised in a ‘separation agreement’. This is a flexible document that can be completely tailored to the needs of the separating couple. It can cover all aspects of the separation including arrangements for the children and the finances. A ‘separation agreement’ is not necessarily legally binding but for some separating couples is a good ‘halfway house’ until they are ready to proceed with a divorce.
- The third option is divorce. This will provide a couple with finality and lawfully brings the marriage to an end. It is essential to deal with the finances upon divorce. Arrangements for the children can also be dealt with alongside the divorce and finances if necessary.
Of course, if any delay in decision-making may risk someone’s safety or financial position, we advise that urgent action is taken.
What is the divorce process?
There are a number of steps involved in the divorce process and your role in the steps will depend on whether you are filing for divorce or whether your partner is filing for divorce.
Filing for divorce
Firstly, to initiate divorce proceedings one party will need to file a divorce Petition. This is now generally done online. The person who files the petition then becomes the ‘Petitioner’ in the divorce proceedings.
The other party will be served with the court issued Petition and a blank ‘Acknowledgement of Service’ form. This party then becomes the ‘Respondent’ to the divorce proceedings.
Next, the Respondent is required to complete the online ‘Acknowledgment of Service’ form and send this back to the court within seven days. There is a court fee for filing the divorce petition of £550.
The interim stage: Decree Nisi
Once the Respondent has replied to the court with their completed Acknowledgement of Service, the Petitioner can apply to the court for the Decree Nisi and the court will set a date for the pronouncement of Decree Nisi. This is the interim stage of divorce. This does not mean the divorce is finalised but is important for arranging any associated financial matters.
The final stage: Decree Absolute
The petitioner is entitled to apply for Decree Absolute six weeks and one day after the date of Decree Nisi. If the Petitioner does not apply the Respondent can apply twelve weeks after the date by which the Petitioner could have applied.
One important note here – you should always take specialist legal advice before applying for Decree Absolute. That is because Decree Absolute serves to lawfully bring the marriage to an end and in doing so can limit the financial claims each person is entitled to make against the other. The Decree Absolute brings the marriage to an end but does not conclude the financial arrangements, which are dealt with separately.
What am I entitled to and when?
There’s no simple answer to what you are entitled to upon divorce. This will need to take into account the resources you and your spouse have between you, the individual needs of you and your spouse, as well as any children of the marriage.
The decision will be based upon the individual facts of your case – your family lawyer will be able to advise you upon what you may be entitled to.
It may be that interim financial support is needed by one party from the other while the divorce process is going through. Again, your family lawyer will be able to advise if this is relevant for you, and if so, how to secure this support.
What about the kids?
The welfare of any children of the family is the priority in all divorce/separation cases.
Where possible, you will be encouraged to reach an agreement with your spouse about children.
This is the most cost-effective approach and also allows for greater flexibility. Generally, it also means a more amicable resolution which is in the best interests of the child(ren).
Mediation can be helpful in reaching agreements for the children. In some cases, family therapy is advised for issues concerning the children.
If an agreement cannot be reached, then an application to the court can be made for a Child Arrangements Order and/or Specific Issue Order. This will formally determine the arrangements for the children.
However, the starting point since the Children Act 1989, is that there should be no Order in relation to the children where the parties can reach an agreement.
Who gets the house in a divorce?
The family home has a special place within the finances. The decision about the family home will take into account a number of factors. These will include the housing needs of the children, the housing needs of you and your spouse, and whether there are other assets and resources available to one or both parties. Again, all of this will be specific to each case so your family lawyer will be able to explain to you what this might mean for you.
If I don’t currently work, will I have to find a job?
Non-working spouses may be encouraged to return to work in certain cases. However, it is not always possible for this to happen immediately, or at all, particularly where one person is the primary caregiver to young children.
What if my partner leaves the country?
If one party leaves the country with a view to hiding foreign assets, you can apply to the court for worldwide freezing orders. This will preserve the assets so that they remain properly available for sharing in any divorce and financial remedy proceedings.
Do I have to give reasons for the split?
Yes, you or your spouse must provide a reason for a divorce if you are in England and Wales. The alternative to this is to wait two years as then you would be entitled to what is known as ‘divorce by consent’.
The law is changing though. ‘No fault’ divorce – where no reason needs to be given for divorce, is due to come into law in Autumn 2021.
What are the grounds for a divorce?
There is only one ground for divorce, which is the ‘irretrievable breakdown’ of the marriage. The Petitioner will then need to rely on one of five facts to demonstrate the irretrievable breakdown of the marriage. These facts are as follows:
- Unreasonable behaviour
- Desertion – your partner left you at least two years before the filing of the petition
- Two years separation with consent
- The parties have been separated for at least five years prior to the date of filing the petition
Providing a reason for the divorce needs to be dealt with carefully so as to avoid causing any unnecessary acrimony at the outset of the case. Getting off on the wrong foot can be unhelpful in trying to reach a quick and amicable resolution.
How long will the process take? Will I have to go to court?
The divorce process itself is paper-based (so no court attendance is necessary). It generally takes between 6-9 months. Most of this time is spent waiting for the court to approve the paperwork.
Cases can go on for longer depending on whether the finances and child arrangements can be agreed between the parties. If financial proceedings are issued then it can take around 12-18 months to conclusion. You would have to attend court if proceedings are issued.
Who should I meet with to arrange a divorce? A mediator or a family lawyer?
Generally, it is advisable to meet with a family lawyer before engaging a mediator. They will be able to advise you on the process that lies ahead and the options available to you in your specific case.
A family lawyer will also be able to recommend certain mediators to you who they know to be reliable and effective.
Mediation is not appropriate in all cases. However, it can be a very useful way in which to, at the very least, narrow the issues in a case in a cost-effective manner.
You can work with your instructed family lawyer alongside the mediation process to ensure that the two can dovetail to achieve a cost-effective resolution which remains in your best interests.
What will all this cost? Can the state help me?
There are very limited circumstances in which divorcing parties may qualify for legal aid (government support). It is always worth checking this with your family lawyer at the outset. Very few family lawyers do legal aid work these days.
The likely cost is dependent on the issues to be resolved in the case; for example, whether an early financial settlement can be reached and/or whether there are additional aspects of the case to be resolved such as child arrangements.
Your family lawyer should provide you with detailed costs estimates at the outset of your case. They should also give you regular updates as your matter proceeds so that you know the cost to you at all stages.
There are ‘Divorce Loans’ available to meet legal fees and the suitability of such loans for you can be discussed depending on the circumstances. Sometimes it is possible to get your partner to fund your costs. The key thing is that there should be a level playing field, where possible.
How will I ever get over this and rebuild my life?
Going through a divorce can be one of the most stressful and anxious times in a person’s life. It is important that your case is dealt with carefully and in a way that will best help you to move on as smoothly as possible. You might also want to work with a therapist to help support you with the breakdown of your marriage – your lawyer or GP may be able to recommend a therapist for you.
This article was first published in The Latte Lounge here.
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