Divorce proceedings cannot be commenced within one year of the marriage contracts being signed and the couple being declared legally married. However, judicial separation and nullity are possible alternatives within this time frame.
Note also that divorce proceedings will dissolve a marriage, and that this is distinct from a process known as ancillary relief proceedings, which seek to resolve financial issues. Although it is possible for the parties involved to conduct their own divorce proceedings, it is more usual to instruct experienced family law solicitors.
Although some firms may offer specialist women’s or men’s divorce lawyers, a good firm can represent either party in divorce. Finding the right divorce lawyers in London or anywhere else in the country can seem daunting, particularly at a time of considerable emotional strain, but personal recommendations can often assist in the decision-making process.
The Residency Issue
Satisfying the residency question is a prerequisite of applying to petition for divorce in either England or Wales. There are several possible options. The main ones are listed below but there are others, and it is best to seek professional guidance from divorce solicitors in London or your local area.
- Both parties to the divorce have their permanent homes (the parties are domiciled) in either England or Wales when they start the petition to divorce.
- Both parties are living in either England or Wales when the petition to divorce is begun.
- Both parties had their last residence in either England or Wales.
- One party is living in either England or Wales when the divorce petition is started.
- One party has been living in either England or Wales for a minimum of one year on the day the divorce petition is started.
- One party has their permanent home in either England or Wales and, on the day that the divorce petition is started, one party has been living in either of these countries for a minimum of six months.
The Divorce Petition
Either party to the marriage can be “the petitioner”; that is, the person to apply for a divorce petition. The petitioner sends the divorce petition (Form D8), an accompanying statement of arrangements for any children (Form D8A) and the marriage certificate to the court. To issue the divorce, the court currently charges a fee of £150.
Grounds for Divorce
The petitioner must demonstrate irretrievable breakdown of the marriage. This is done by proving one of five facts:
- The other spouse has committed adultery
- Unreasonable behaviour of the other spouse
- After two years, desertion by the other spouse
- After two years, separation with the consent of the other spouse
- After five years, separation without consent of the other spouse
Notice of Issue of Petition
In response to the divorce petition, the court sends the petitioner a notice of issue of petition (Form D9H). This confirms that the petition has been received and states when it was sent on to the respondent and, if one has been appointed, to their lawyer. If the cited reason was adultery, the third party named in the petition also receives a copy of the divorce petition.
Acknowledgement of Service
The respondent has eight days, which include the day of receipt, to acknowledge service of the petition and the statement of arrangements. This is done by sending Form D10 to the court. If the respondent intends to defend the petition, this information must be included.
Defending the Petition
Not all divorce petitions are defended but a respondent who plans to do so has 29 days from the day of receipt of the petition and statement of arrangements to send their defence (or “Answer”) to the court. The parties to most defended divorces reach an agreement during the subsequent proceedings. Contested divorces almost always necessitate professional expertise.
Directions for Trial
The petitioner needs to apply for directions for trial if he or she knows that the respondent intends to defend the case and has not responded within the prescribed 29-day period. An application for directions for trial is made on Form D84. It should be accompanied by an affidavit of evidence on Form D80.
Failure to Respond
Where the respondent fails to acknowledge service of the petition by returning Form D10, the petitioner must then request the services of a bailiff using Form D89. The form must be accompanied by a photograph or a description of the respondent or of the co-respondent, and the appropriate fee.
With undefended petitions, the court can be applied to for the decree nisi by the petitioner once the acknowledgement of service on Form 10 has been received. The petitioner must use Form D80 to provide a sworn affidavit verifying the contents of the acknowledgement of service.
Certificate of Entitlement to a Decree
Once a judge has reviewed the paperwork and is satisfied that it is in order, the court will send the petitioner and respondent a certificate of entitlement to a decree. This lets them know the date and time when the judge will grant the decree nisi.
It is not mandatory for either the petitioner or the respondent to be present in court when the decree nisi is pronounced. Both parties, along with any co-respondent, receive copies of the decree nisi on Form D29.
The petitioner can then apply for the decree absolute six weeks and one day after the decree nisi is granted. The notice of application for a decree nisi to be made absolute is made on Form D36. This form is usually processed within a matter of days. Once the court grants the decree absolute, the divorce is final. If the petitioner chooses not to apply for a decree absolute, the respondent is able to apply for it three months after the date on which the petitioner could have done so. In certain circumstances, the petitioner is able to prevent the respondent from applying for the decree absolute.