In England and Wales, a divorce is available to any couple who have been married for at least a year and whose marriage has irretrievably broken down, provided:
(a) their marriage is legally recognised in the UK; and
(b) at least one party to the marriage has a permanent home in the UK.
Family law solicitors can provide guidance to anyone worried about whether or not they are eligible to apply for a divorce.
How to Apply for a Divorce
Anyone seeking a divorce must issue a divorce petition. Essentially, this is a means of asking the court for permission to divorce. It is not compulsory to engage lawyers to assist with the divorce process but many people choose to do so.
This is for a number of reasons, including unfamiliarity with the legal process and the emotional strain inherent to many relationship break-ups. It may be convenient to seek local advice but it is important not to be afraid to go further afield to find the right help. Divorce lawyers in London and elsewhere can represent parties just about anywhere in the country.
The divorce petition must give details of the parties to the marriage, the grounds on which a divorce is sought and provide evidence that the marriage has irretrievably broken down. It should be accompanied by the marriage certificate or another form of proof of the existence of the marriage.
There are five possible ways of proving irretrievable breakdown:
(a) two years’ separation if both parties to the marriage give written agreement to the divorce;
(b) five years’ separation if both parties have not provided written agreement to the divorce;
(c) adultery, which means that the petitioner’s spouse had sexual intercourse with a third party. Note that it is not possible to rely on this ground if the parties to the marriage continued to live together for six months or more after the petitioner discovered the adultery;
(d) unreasonable behaviour, which means behaviour making it unbearable for the petitioner to continue their marriage to their spouse. Domestic abuse, including emotional abuse, and alcohol or drug issues are commonly cited examples of unreasonable behaviour. However, this is a subjective test, meaning that many different behaviours have the potential to be classed as unreasonable; and
(e) desertion, which means that the petitioner’s spouse has abandoned them without good reason and without seeking their agreement. The period of desertion must be for at least two of the past two-and-a-half years.
Note that an annulment is not a divorce. Annulments are granted when a court considers that: (1) a valid marriage was not contracted because, for example, one party was below the age of 16 (the marriage is void), or; (2) that a marriage was defective for some reason, such as due to a lack of consummation (the marriage is voidable).
Contesting a Divorce Petition
This is relatively unusual. Anyone wishing to contest a petition, or who receives a defence to their petition, is best advised to seek legal guidance if they have not already done so. Divorce solicitors in London and across the rest of the country are skilled at helping parties contest and defend petitions. It is not necessary to seek out women’s or men’s divorce lawyers: good family law solicitors can represent either party.
If the petition is undefended, the court will grant a decree nisi when it is satisfied that the petitioner is entitled to a divorce. The decree nisi is the precursor to the decree absolute.
The decree absolute is the legal decree that dissolves the marriage and frees both parties to marry other people should they wish to do so.
It is permissible to apply for the decree absolute once six weeks and a day have elapsed since the decree nisi. If the petitioner fails to apply for the decree absolute within four and a half months of receiving the decree nisi, the respondent can apply instead.
The respondent must attend court to do this because there may be a good reason why the petitioner has not yet applied. Often this is to do with financial arrangements.
Courts are not always asked to address financial arrangements between divorcing parties. However, they are commonly asked to do so in a number of situations, including where: there are dependent children of the marriage; the parties have complicated financial arrangements; there is a disparity between the parties’ earning abilities; or there is a pre-nuptial agreement.
It is worth noting that a pre-nuptial agreement has no legal force. That said, if there is evidence that such an agreement was freely entered into by both parties, the courts will have to take into account its terms unless there is a good reason not to do so. The presence of children of the marriage is one example where a pre-nuptial agreement may not be upheld.
When it comes to determining financial arrangements between a divorcing couple, the parties must disclose all of their assets and liabilities to the court. Any attempt to conceal assets may result in the other party receiving a more beneficial financial award than might otherwise have been the case.
Expert legal advice is essential for both parties when it comes to court-ordered financial arrangements.