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According to the latest available figures from the Office for National Statistics (ONS) there were 111,169 divorces in 2014. Choosing to divorce is a difficult decision, but if a marriage has broken down, for whatever reason, it is often the best option.
There are many things to consider and agree between separating partners, including childcare and custody; property and possessions; plus financial arrangements both short and longer term. Legal advice and support can be an invaluable help with these decisions, and can help to frame the process and keep it amicable and on track.
What are the first stages?
You may prefer to separate informally for a time, or formalise the separation by drawing up a separation agreement, before ending the marriage by divorce.
You cannot divorce if you have been married for less than 12 months, so may need to apply for a judicial separation. This means you can legally separate from your spouse but cannot remarry.
To divorce you will need to file a petition form in Court. This standard form must give the reasons for the divorce, details of your marriage and of any children in your care. There is a fee to be paid.
What reasons can I give for wanting a divorce?
From the Court's perspective, there is one fundamental reason for divorce; that the marriage has completely broken down and reconciliation is not possible (irretrievable breakdown).
To prove this irreconcilable breakdown has occurred, the petitioner (the person starting the proceedings) will need to establish at least one of the following:
- The other spouse (the respondent) has committed adultery (including relationships after separation)
- Unreasonable behaviour; this is a very wide ranging category, and could include mental or physical cruelty, violence or abuse, dominating a spouse, keeping the spouse housebound, forbidding her to speak to neighbours and friends or withholding housekeeping. It can also include less obvious or less "severe" issues like the respondent taking no interest in the partner's life, or refusing to socialise with their partner.
- The respondent has deserted the petitioner for over 2 years
- The parties have separated and been living apart for 2 years and both agree to the divorce
- The couple have lived separately for 5 years (no consent is needed from the respondent)
The petitioner may be asked to provide evidence of the alleged grounds for divorce.
What happens next?
Once the spouse receives a copy of the issued petition from the Court this must be confirmed by filing an ‘Acknowledgement of Service’ form, which will state whether the divorce is contested or agreed.
If the divorce is not contested the petitioner may apply for the decree nisi, a standard form in which various questions must be answered.
Once the Court accepts the papers and the grounds for divorce are approved by a judge the decree nisi is listed on the list to be pronounced in open Court on a certain date. There is no need for either party to attend the Court.
The marriage is not officially ended until the decree is made absolute and there is a minimum period of 6 weeks before this can happen.
In some situations the parties may request that the decree absolute is held back until all financial issues are resolved.
The petitioner is usually the person who applies for the decree absolute, but should this not occur the respondent may make his or her own application 3 months after the minimum 6 week period has elapsed.
Once the decree absolute has been granted the marriage is dissolved. Should either spouse die before his date the other party may be entitled to pension rights as the widow or widower of the deceased.
How long does a divorce take?
The procedure is largely administrative, and where there is no disagreement between petitioner and respondent the divorce should be completed in 4 to 6 months.
If there is disagreement between the parties, either over the reasons for the divorce, or in regard to arrangements for finances or children, the process can take much longer, and may result in Court action.
Do I need a solicitor?
Although it is not necessary to use a solicitor for the procedure itself, even where a divorce is undefended it is advisable to consult a lawyer. He can advise whether you have sufficient and appropriate grounds for divorce and the evidence you will need.
There may also be financial and property proceedings or procedures relating to any children that will need to be legally formalised.
Where a divorce is defended both spouses will need to engage a solicitor. It is wise for both parties to try and come to an agreement to avoid long disputes and costly court proceedings.
Can I get legal aid for divorce?
Legal aid is not available for divorce unless the petitioner has been subjected to domestic violence or abuse. This includes financial, psychological or emotional abuse as well as physical or sexual violence.
Legal aid is also available for victims of domestic violence who need advice on financial disputes or disputes about children, or for family mediation.
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