These notes set out how the divorce process works.
Starting divorce proceedings
It is not possible to start divorce proceedings within the first year of marriage.
The first consideration is whether the courts of England and Wales have power to consider divorce proceedings. Where either or both of the parties have been resident outside England and Wales, there may be limitations on the power of the court to deal with a divorce here.
If either party has been or is living abroad, or domiciled in another country, or many of the assets are situated overseas, urgent advice must be obtained. If divorce proceedings are started in the wrong country, it can have a profound impact on the financial settlement.
The divorce procedure is usually straightforward. A series of forms has to be filed at the court office; no appearance at court by the husband or wife, or by solicitors, is required. The flowchart at the end of this note sets out the procedure. It is however much more complicated if a divorce is contested.
The spouse who commences proceedings and files the petition is called the "Petitioner", the other is called the "Respondent".
There is one court fee payable when the process is started.
What has to be proved?
There is one ground for divorce: that the marriage has broken down irretrievably.
Evidence of the irretrievable breakdown has to be given in the divorce petition by proving one of five facts:
- Adultery - that the Respondent has committed adultery, and the Petitioner finds it intolerable to live with the Respondent. The third party does not have to be named. If he or she is, that person is the Co-respondent;
- Unreasonable behaviour - that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Specific examples of bad behaviour have to be listed;
- Desertion - that the Respondent has deserted the Petitioner for a period of two years;
- Two years separation - that the parties have lived apart for two years and the Respondent consents to a divorce;
- Five years separation - that the parties have lived apart for five years.
Arrangements for children
The Petitioner has to file a standard form setting out the proposed arrangements for children. This is a "safety-net" provision. If there is cause for concern, a judge may want those concerns investigated. Normally there is no issue about the children in the divorce itself - but see the separate briefing note on arrangements for children generally.
How long will it take?
The length of time it takes to get a divorce, from beginning to end, varies from area to area and court to court. The divorce itself can take as little as three to four months to complete, but many people postpone applying for the final decree until the finances are sorted out, especially if pensions are involved.
Financial matters have a separate timescale of their own.
The basic steps in a divorce are set out in the flow chart below. It assumes that the divorce is not contested. If it is, the process will be likely to take much longer and a different procedure applies.
Click here to view flowchart.