Divorce can be a terribly difficult time for a couple/their children. Here, family solicitor Nicola Gibbs gives a simple overview of the legal process of a divorce.
The process for separation is very personal to each individual. But, one constant for all is the court process for the divorce
Where do we start
The starting point for a divorce is that your marriage has ‘irretrievably broken down’. The court document that starts the process is called the petition. The person applying for the divorce is known as the petitioner, and the other person the respondent.
A divorce can only happen for one of the following 5 facts:
- unreasonable behaviour
- 2 years separation when both people agree to it
- 5 years separation without consent
Once the petition has been completed, it’s normal practice for it to be sent to the respondent before sending it to the court. This allows the respondent the chance to resolve any objections that they may have. Once this has happened, the document is sent to the court who assign a case number to the petition. The court office will also stamp the document with the official court stamp and send it to the respondent (or their solicitors).
It is essential for the court to be satisfied that the petition has been received by the respondent. The form is known as the ‘acknowledgement of service’ needs to be completed (by the respondent) and returned to the court. The court will then send it to the petitioner.
Provided the respondent doesn’t object to the divorce, the next stage is for the petitioner to prepare an ‘affidavit in support’ of the divorce. An affidavit is a document that is sworn on oath in front of either a solicitor or the court office. The petitioner must swear that the content of the document is true.
Once the affidavit is sworn the petitioner must submit it to the court with the application form for decree nisi (see below)
Provided the judge is happy with all of the documents, the court will provide a date for decree nisi to be pronounced. The decree nisi is ultimately the court confirming that, provided circumstances don’t alter, the petitioner is entitled to the divorce. Both parties will be sent the date for the decree nisi and in most cases neither party will need to attend the hearing.
6 weeks and one day after the decree nisi the petitioner can apply for decree absolute. Once the decree absolute has been provided the marriage is officially dissolved.
So the process is generally all done by paper and rarely requires court hearings.
Finances and Children
The legal end to the marriage (divorce) is often the straightforward part! Agreeing who gets what, and arrangements for the custody of children can sometimes rumble on for months, or even years after the actual legal divorce.