The Divorce Process – undefended divorce where no children and finances are agreed

In terms of process and a purely paperwork exercise for an undefended divorce where there are no children who are still considered in law to be children, and where financial matters are agreed, this is fairly straightforward. Most divorces do however involve children and finances, so the following guide does not reflect the complications these issues involve or the paperwork and process involved.

If you are thinking of getting a divorce, there are a number of steps in the divorce process that you must follow which are governed by the provisions of the Matrimonial Causes Act 1973 (as amended) and the Family Proceedings Rules 1991 (as amended).

Essentially, you (the Petitioner) must submit a ‘Divorce Petition’ to Court which can be made provided you have been married for at least one year immediately preceding the presentation of the petition. This rule was essentially implemented to discourage people from being overly hasty in their decision to petition for divorce.

The other criterion in the initial stage of the divorce process which must be satisfied in order to petition is whether there is jurisdiction of the English courts to hear the divorce suit. This can be established if for example:

a)            Both parties are habitually resident in England and Wales; or

b)            The Petitioner is domiciled (has a permanent home) in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed.

The key to a straightforward divorce (without contention) is to amicably agree wherever possible in advance of the petition being filed. In cases where both parties are agreeable and the petition proceeds undefended, the divorce process can take just 4 months.

When petitioning for a divorce, you must state the reason/s (facts) that have caused the marriage to irretrievably (permanently) break down. There are five facts specified in Section 1(2) of MCA 1973 which the Courts recognise as adequate/lawful grounds for divorce which must be accepted and acknowledged in order for the Court to grant a Decree Nisi, the next stage of the divorce process.

It is extremely rare, bearing in mind the non-fault nature of divorce, for the Court to not be satisfied that a marriage has broken down, then a Decree Nisi may not be granted at this stage. Provided that one or more of the following facts are applicable and attributable to the breakdown of the marriage and can be supported, the timescale of when the facts occurred is irrelevant and can merely support and further evidence the breakdown, i.e. if adultery was committed after a period of separation it can still be a factor supporting grounds for divorce.

Facts for divorce

1.            Adultery and Intolerability – These two elements must be satisfied in conjunction/accordance with one another; thus, as a result of the Respondent committing adultery, the Petitioner finds it intolerable to live with the Respondent.

2.            Unreasonable Behaviour – The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Although this is an objective test, the Court must take into account the history of the marriage and have regard to the personalities of the individual spouses.

3.            Desertion – The Respondent has deserted the Petitioner for a period of at least two years immediately preceding presentation of the petition. The is difficult to prove and rarely used.

4.            Two years’ separation and consent – That the parties have lived apart for a continued period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted.

5.            Five years’ separation – That the parties have lived apart for a continued period of at least five years immediately preceding the presentation of the petition.

Once one or more of the above facts are declared in the petition which a Solicitor is usually instructed to draft, 3 copies are then submitted to the Court together with a £340.00 Court fee (as at March 2012) who will subsequently forward a copy to the Respondent along with a ‘Notice of Proceedings’ and an ‘Acknowledgement of Service’ for the Respondent to fill out and return, (they are usually given 8 days in which to do so). The Court will notify you or the Solicitor acting on your behalf when the notice was issued and served on the Respondent and if it was acknowledged and/or accepted, i.e. undefended. If the Respondent accepts the petition and does not wish to defend the claim on the facts you have stated, you can apply for a Decree Nisi accordingly.

What about children ?                                                                                                                                     

Obviously, where there are children involved, the divorce process is not always as straightforward whereby arrangements must be put in place regarding custody, finances and contact notwithstanding the fact that your spouse may dispute the facts on the petition and defend the claim accordingly which can be emotionally difficult, a much longer process and more expensive.

Decree absolute

Once you have been granted the Decree Nisi, the next stage in the divorce process would be to apply for a Decree Absolute to legally end your marriage. This can be applied for 6 weeks and a day after the date that the Decree Nisi was issued with a £45.00 court fee payable at present. You or your Solicitor will usually submit a ‘Notice of application for decree nisi to be made absolute’ when the 6 week period has ended rather than delaying the next stage as the Court may question the reasons for the delay.