Frequently asked questions on divorce
How long does it take to get divorced?
A relatively straightforward and uncontested divorce typically takes between four to six months, provided that both parties process the court papers promptly. If the divorce is contested or agreement cannot be reached on related matters then the process can take up to 12 months or possibly even longer. However, it is possible to get divorced before a financial agreement has been finalised.
What are the stages of divorce?
Divorce petition – person seeking a divorce (the petitioner) files the petition at court.
Notification to the respondent – the court will send the petition to the respondent (the other person).
Acknowledgement of service form – the respondent replies to the petition by sending a completed acknowledgement of service form to the court.
Confirmation of acknowledgement sent to petitioner – the court will send the acknowledgement of service form to the petitioner.
Respondent’s opportunity to oppose – if the respondent opposes the divorce, they have 21 days to complete and send to the court an answer to a divorce petition form stating their reasons. If they fail to file the answer the petitioner can proceed with the divorce as below. The respondent can also start their own proceedings against the other person by way of a cross petition.
The petitioner applies for decree nisi – the application for decree nisi and statement in support of the petition are sent to the court together with the respondent’s acknowledgement of service form.
Decree nisi granted – the judge will consider the petition along with the application for decree nisi and decide whether they are satisfied that the grounds for the divorce have been met, if so the judge will grant a certificate of entitlement to a decree with a date for decree nisi.
If the respondent has opposed the divorce, there is a court hearing. Following that, the judge may grant the decree nisi or send both parties a notice of refusal to state why the divorce cannot take place or if further information is required.
Petitioner applies for decree absolute – six weeks after the decree nisi has been granted, the petitioner can apply for the decree absolute to end the marriage. If the petitioner does not apply then a further 3 months later the respondent can apply for the decree absolute.
Decree absolute granted – the marriage is dissolved.
How can I protect myself from financial claims in the future?
Whilst a decree absolute will legally end a marriage it does not bring to an end the financial links between divorcing couples. The only way to protect yourself from a former spouse pursuing a financial claim against you in the future is to obtain an order from the court which includes a clean break clause.
A clean break order allows you to break all financial ties with your former spouse and once an order has been made, all potential future claims are dismissed so you cannot claim further money or assets from a former spouse. The order can only be obtained once the court has the power to deal with financial issues, which occurs during the divorce process at the decree nisi stage.
When is annulment an option?
Annulment is a way of ending a marriage, like divorce. You may wish to have an annulment if you have religious reasons for not wanting a divorce, however an annulment is only an option if you can show the marriage was either not valid in the first place (void), or is defective for one of the reasons given below (voidable).
Void marriages – you can annul a marriage if it was not valid in the first place, examples include:
- You are closely related
- One or both of you were under 16
- One of you was already married or in a civil partnership
If a marriage was not legally valid, the law says that it never existed.
Voidable marriage – if your marriage is defective, you can annul a marriage for a number of reasons, including:
- It was not consummated – you have not had sex with the person you married since the wedding (this does not apply for same sex couples)
- You did not properly consent to the marriage – you were drunk or forced into the marriage
- The other person had a sexually transmitted disease when you got married
- The woman was pregnant by another man when you got married
What are irreconcilable differences?
There is only one ground for divorce in England and Wales, namely that your marriage has irretrievably broken down. In brief, irreconcilable differences means when a difference or differences between two people in a marriage or civil partnership cannot be changed which makes it impossible for the relationship to continue or intolerable for the couple to live together.
The current divorce system in England and Wales does not allow an immediate no fault divorce that would make it possible to use irreconcilable differences as the justification. It is therefore necessary to prove that your marriage/civil partnership has irretrievably broken down by stating one of five acceptable reasons as follows:
- Adultery – a sexual act between two people of the opposite sex (this does therefore not apply to same sex marriages)
- Unreasonable behaviour
- Two years separation with consent
- Five years separation
What if children are involved in the divorce?
Even when a couple have separated their children still deserve a happy and secure childhood with both parents in their lives. It is important that children are protected from conflict by not becoming involved in adult matters including speaking negatively about the other parent to them or discussing details of the separation with them.
The law encourages separated parents to work together for the benefit of their children and try to resolve disputes between themselves and not through court intervention. If both parents agree the arrangements for their children (where they will live and how much time they will spend with each parent etc.) the court does not need to become involved. However, if there is a dispute about the arrangements for the children then either party can apply to the court for resolution of the disputed issue, whether it be who the children live with, how much time they spend with the non-resident parent or more specific issues such as which school they attend or should the child’s name be changed.
Before an application can be made to court the person who is making the application must first attend a family mediation information and assessment meeting (MIAM). Mediation is the process by which parents seek to reach an agreement about arrangements for children. There are exceptions to this requirement in particular circumstances, for example if there is evidence of domestic violence or child protection concerns, or the matter is urgent.
Does ‘unreasonable behaviour’ or ‘adultery’ impact the financial settlement?
It is very unusual for the reasons cited within a divorce petition to be relevant to the outcome of financial matters and the court does not seek to penalise one party financially as a result of any 'bad' conduct during the marriage. The divorce is a separate process to finances, for the purposes of dissolving a marriage.
What if finances are involved in the divorce?
At Stephensons, a number of our solicitors are members of Resolution and are therefore committed to resolving disputes in a non-confrontational and constructive manner wherever possible. It is therefore our aim to promote an agreement but court proceedings may be needed if the other party does not respond to approaches or if agreement cannot be reached.
Many financial agreements are capable of resolution by way of early negotiation, either directly between the parties, mediation, collaborative law or solicitor based negotiation. If an agreement is reached it will need to be approved by the court, to ensure it is reasonable and to make it legally binding.
If agreement cannot be reached, then it will almost certainly be necessary for one party to submit an application to the court for determination. It is still possible however to reach an agreement within the court process. The vast majority of financial court proceedings are resolved without the need for a judge to make a decision at a final hearing, however if no agreement is reached throughout proceedings the final stage will be a judge ultimately deciding the division of assets.
How is a financial settlement reached?
Advice at Stephensons is based on not only legislation and case law but our years of considerable experience to give you the best guidance on how an individual case may be considered by the court. There are a number of key factors that are taken into account in an assessment of how capital should be divided and whether income should be considered, they are as follows:
- The income, earning capacity, property and other financial assets which each party has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future - this includes in relation to any relevant child of the marriage
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each party to the marriage and the duration of the marriage
- Any physical or mental disability of either of the parties to the marriage and their health
- The financial and non-financial contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family - including any contribution by looking after the home or caring for the family
- The conduct of each of the parties - this is only considered in limited circumstances and if that conduct is such that it would in the opinion of the court be inequitable to disregard it
- Financial loss to any party of the divorce
What is a decree nisi?
A decree nisi is an order of the court that states the divorce petitioner has proved the reason for irreconcilable differences (one of: adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation) and therefore can have a divorce. It will also provide the earliest date the divorce can end.
In a civil partnership dissolution the order is called the conditional order.
What is a decree absolute?
The decree absolute is a court order that ends a marriage. It can’t be issued for at least 6 weeks from the date of the decree nisi.
In a civil partnership dissolution the order is called the final order and this dissolves the partnership.
Is it possible to separate without getting a divorce?
In short yes it is possible. If you have decided to separate, but do not want to consider a divorce, there are a number of options including, a separation agreement or judicial separation.
A separation agreement which is a document which sets out the arrangements a separating couple wish to make for issues like finances, children and property. You can have a separation agreement if you are married or not. If married the separation agreement can be used to agree the terms of your separation before the arrangements are finalised in a divorce if you wish to do this later. The agreement will aim to tie up loose ends to avoid future issues. A separation agreement is not legally binding in the same way as a court order, however it is a contract between two people so it can be challenged in court in the same way as any other contract. It is therefore important that a separation agreement is drafted by a solicitor.
Judicial separation is sometimes called a legal separation. This will allow parties to live apart without a divorce or dissolution of their civil partnership. You can ask for a judicial separation for the same reasons a divorce can be applied for, e.g. adultery or unreasonable behaviour. You do not however have to show the marriage has irretrievably broken down. A judicial separation may be required in certain circumstances, such as:
- Religious or moral reasons prevent a divorce/dissolution
- You have been married/in a civil partnership for less than a year but wish to resolve the financial issues on separation
- You require time and space to decide whether you want to end the marriage/partnership
- It can be less traumatic
- There may be some financial benefit in not divorcing/dissolving your partnership, for example where there is significant disparity in the ages of the couple and their respective pension provision
What if I don’t agree to the divorce?
You can object to the grounds on which a divorce is sought, this is called a defended or contested divorce .A defended divorce is when the other person in the marriage does not accept the relationship has broken down or does not agree the grounds stated in the petition are correct.
Whilst it is not uncommon for people to disagree the reasons for the divorce stated on the petition, for example they deny the details of the unreasonable behaviour that has been included on the petition, it is not always necessary to defend a divorce for this reason. As a defended divorce can be expensive and time consuming it is more common for disagreements about the contents of a petition being settled in communication between the parties or correspondence between solicitors.
If you do not agree with the divorce as you do not accept the marriage is over or the reasons stated are disputed and too significant to allow it to proceed, then defending the divorce should carefully be considered with the benefit of legal advice due to the cost and emotional turmoil involved. It should also be noted that it is often the case that defending a divorce could be a futile exercise as the court is reluctant to force people to remain married.
Will I have to go to court when getting divorced?
If there is no disagreement to the divorce there will be no need to attend court. In addition if you can reach a reasonable agreement between yourselves in relation to finances and looking after dependent children it is unlikely you will need to attend court in person. If there are any disagreements in relation to finances and the children that cannot be resolved either by agreement or in mediation this may require the determination of the court and this will involve attendance at court.
Get in touch
Our team of divorce law solicitors can help and support couples who wish to begin divorce proceedings or any other related service including dissolving a civil partnership or separation agreements. Speak to our experts confidentially and without obligation on 0203 816 0548 or complete our online enquiry form and we will contact you directly.