Grounds for Divorce
There are many reasons that can be used as grounds for divorce but there are a number of alternative routes other than divorce which, for some can seem so final. Some couples prefer a separation which is where the couple are still married but they live apart. Divorce is a big decision to make and it is strongly advised that you consult a solicitor before making any decisions.
A deed of separation can be made which is there to record any agreements made between the couple in relation to children, financial matters or any plans to divorce in the future. Before either party signs the agreement, they should consider its contents carefully because it can be used in court if the couple later apply for a divorce.
If both parties have sought legal advice, courts would rather not overturn a decision at a later stage, provided that both parties have been honest from the outset and there has not been a significant change in circumstances.
Alternatives to Divorce
As an alternative to a divorce, there is a legal term called Judicial Separation. Although it is not a common type of separation it could be considered when there are objections from a religious perspective for divorce. The Judicial Separation follows the same principles and procedures as a regular divorce and the courts have the power to resolve financial disputes and any which relate to children. The key difference in this separation agreement is that you no longer have a legal obligation to live together but you cannot remarry.
Grounds for Divorce
If all other alternatives have been exhausted, the only option left is to file for a divorce. Reasons for a divorce are numerous and for a divorce to be considered you must be able to prove that the marriage has broken down and it cannot be repaired. This would mean that both of you feel that it is not possible to remain married.
Anyone in a partnership can apply to the courts for a divorce in England and Wales provided that you have been married at least a year and at least one of you has lived in the country for a year before your application is made. Once the application is made, the legal process of a divorce will effectively dissolve a marriage.
The application for a divorce is called a Petition and the spouse who applies for it is called the Petitioner, with the other spouse being the Respondent. To make a successful application, the Petitioner must be able to provide sufficient grounds for divorce.
There are five main reasons that can be used for a divorce including adultery, unreasonable behaviour, desertion, separation for two years or separation for five years.
If a spouse has committed adultery and you cannot agree to continue living together you may be able to file for divorce. However, in the majority of cases, divorce can be proved simply by an admission by the spouse. If they fail to admit adultery, you will need to seek advice from a qualified legal professional.
It is also important to note that if you continue to live with your partner for six months or longer after you found out about the adultery, you cannot use this as grounds for divorce, unless they are still committing adultery.
This can be used where a partner has behaved unreasonably and it is no longer possible to continue living together. This category incorporates many different aspects of poor behaviour. The Petitioner must identify the behaviour that makes it impossible to live with the Respondent because these will be provided in the Petition.
However much the situation has deteriorated between you and your partner, it is strongly advised that you keep things as amicable as possible to avoid any problems with negotiation further down the line. A specialist divorce solicitor will aim to send a draft copy of the Petition to your spouse’s solicitor to agree.
Very much the same as adultery, you cannot rely on an incident that occurred more than six months ago if you continue to live with your partner.
If a spouse has deserted you for longer than two years you have grounds for divorce. The term desertion means that a spouse must have left without good reason or prior agreement.
Separation for Two Years
If you have lived apart for no more than two years and your partner agrees to a divorce you can file a petition. Often referred to as a ‘no fault’ divorce. Within this two year period, the law does allow for you to live together, provided that it is no longer than six months and the period of separation has been for at least two years.
Separation for Five Years
This applies when you have lived separately for more than five years. A spouse does not need to agree to the divorce and they have no means to defend the petition but they can request that the court does not grant the final decree if they are experiencing financial or other hardships.
The length of time to finalise a divorce will vary depending on a number of factors and how complex the case is, with the minimum time being between five and eight months. An experienced family solicitor with specialist knowledge of divorce can speed things up and quickly resolve disputes if and when they arise.
When it comes to children, a Statement of Arrangements will need to be filed. In this document, the parents will be required to complete details about the child’s school and any other agreements which have been made in relation to the child who is under the age of 16 and those over the age of 16 but who are in full time education.
The documents that you have to file must clearly outline specific pieces of information. The Petition must outline the details of the facts that are being proven. The marriage certificate must also be provided along with a court fee. Up to date court fees can be obtained through the government website.
Once the application and supporting documents have been sent to the court, they will be carefully checked and processed before being sent to the other party. This initial phase will take approximately four weeks. The Respondent will receive the Petition, Statement of Arrangements and a document which will ask a list of questions which is to be returned to the court. This document is called an Acknowledgement of Service.
The Respondent should send the Acknowledgement of Service back to the court within seven days of receiving the Petition. The Respondent may choose to defend the divorce and if they choose to do this, they should submit an Answer which should be filed within 28 days.
Once the court has received the Acknowledgement, they will require a period of approximately three weeks to process. The Petitioner will then receive a copy of the Acknowledgement along with Part IV of the statement of arrangements for any children. Two blank copies of the Affidavit and application for directions will also be sent.
Once the judge has received all of the documents, they will determine whether they are going to grant the first decree of divorce within a period of approximately four weeks. This is known as the Decree Nisi.
If the district judge reaches a decision that they are satisfied with the divorce and they do not wish to raise any queries, the Decree Nisi will be granted. At this stage, the court will also review any agreements made in relation to the children. If agreements have not been reached, the Petitioner and Respondent will be asked to attend court. The Decree Nisi is just one of two decrees in the divorce process and it states that the grounds for divorce have been proven and the process of law has been completed.
After a period of six weeks and a day, the Petitioner can apply for a second and final divorce decree which is known as the Decree Absolute. Once this is complete, the divorce has taken place. Once you have received the Decree Absolute, the divorce is legal and you are free to remarry.
If the Petitioner does not apply for a Decree Absolute, the Respondent is able to apply three months later. They will have to attend a brief hearing before the judge but the Petitioner could refuse to accept it, particularly when there are issues with pensions.
The divorce process can be a stressful experience, but with the right advice and suitable guidance, a good solicitor should make the process as short and straightforward as possible.
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This article was written by a member of the Expert Answers legal advice team. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.