Divorce and Separation

This page has been prepared to give you as much information as possible about applying for a divorce. It highlights the key issues and explains the sort of timetable to expect. This firm follows a code of practice recommended by the Solicitors Family Law Association and tries to deal with matters as amicably as possible.

Do you need a solictor?
Whenever couples want a divorce, clear legal procedures need to be followed. A Solicitor can advise you about the law, prepare the necessary paperwork and advise you about related matters. Having a Solicitor will not increase the amount of bitterness in obtaining a divorce and this firm will also follow a policy of negotiation between parties wherever possible.

Who can apply for a divorce?
Anyone who has been married for 1 year can apply for a divorce provided one or other of the parties is domiciled here or has been resident in England and Wales the preceding year.

Grounds for divorce
There is only one ground for divorce in this country. That is, that the marriage has “irretrievably broken down.” To satisfy the Court that there has been an irretrievable breakdown the Petitioner must prove one of the following five facts:

Adultery
If your spouse has committed adultery and admits it or you can prove it. If you live with your spouse for more than 6 months after finding out about the adultery it may be more difficult to get a divorce. If you have committed adultery and want a divorce you could ask your spouse to divorce you.

Desertion
If your spouse has deserted you for at least 2 years before applying for a divorce and they have not attempted to return in that time, you can ask for a divorce. This fact is rarely used.

Unreasonable Behaviour
If your spouse has behaved in such a way that you feel you cannot reasonably be expected to continue to live with him or her. The test is subjective and the Court will consider what is unreasonable to the Petitioner.

“Unreasonable behaviour” need not consist of extensive violence, drug or alcohol addiction or other extreme behaviour. A combination of less obviously unreasonable behaviour can be sufficient.

If you live together for more than 6 months after the last incident of unreasonable behaviour it may be more difficult to get a divorce.

Two year Separation
If you have been separated from your spouse for 2 years and you both agree that the marriage has broken down and consent to a divorce.

Five year Separation
If you have been separated from your spouse for 5 years. Your spouse does not have to consent to the divorce.

Divorce petition
Every petition contains the same basic information (e.g. names, addresses, date and place of marriage). It will also contain a statement stating that the marriage has irretrievably broken down and the fact relied upon with details.

Attending court
In most cases there is no need to go to Court. You do not have to be present when you are granted a divorce. You may only have to attend Court if the divorce is defended or if you are contesting a claim for costs made against you.

How long will it take?
The normal time estimate for a divorce is approximately 6 months. It is very hard to be precise. There is no guarantee that your divorce could be dealt with within this time. Quite often, it depends on factors outside our control.

What to do if you do not want a divorce
If your spouse has applied for a divorce and you do not agree, you can try to defend the divorce petition. This is difficult and Public Funding is not normally available. It will also involve attending a Court hearing. Please ask if you require more details.

Children
A form is sent to the Court with the divorce petition that sets out the arrangements for the children. It is better to try and agree the arrangements with your spouse but if that is not possible the Court will make a decision for you. A Court is unlikely to interfere if matters are agreed. Please see Harthills Information Leaflet about cases relating to children for more details.

Financial matters
Financial matters can be complicated and can sometimes involve houses, insurance policies and savings. We strongly advise you to seek legal advice on the most appropriate action for yourself. Often people are concerned that they will have to sell their house. This is often not necessary. If you cannot agree financial matters the Court will make a decision for you. This may include what will happen to the house.

Costs of the divorce
Public Funding is available to apply for a divorce and also Court cases about children and financial matters. We will tell you if you qualify. If you do not qualify for Public Funding we will tell you more details about our costs and estimate the total costs of your case. We will regularly update you with details of our costs throughout your case.

Effect of reconciliation
Divorce proceedings can be stopped at any time before Decree Absolute. If you want to stop the divorce or just put it on hold for a short period, you should tell us immediately.

Alternatives to a divorce

Judicial Separation
If you prefer to legally separate from your spouse without divorcing, you can apply for a Decree of Judicial Separation. This involves a Court procedure, which is virtually identical to a divorce. The essential difference is that the Court pronounces a Decree of Judicial Separation rather than a divorce and therefore you and your spouse would remain married.

Separation Agreement
Many couples prefer to reach an agreement about financial matters without involving any Court procedures when they separate. It is possible to prepare a written legal document that sets out the agreement that has been reached. Both parties then sign the document. There are no restrictions on what can or cannot be included in the agreement but it important to bear in mind that if either person applies to the Court about financial matters, the Court is not bound by the financial arrangements contained in the separation agreement. If you want further information, please ask us.

We understand that the decision to apply for a divorce is very important and can be difficult. If you do not feel that your marriage is over there are a number of agencies, which will help with Marriage Counselling and Advice. We can put you in touch with one if you think that there is any possibility of reconciliation with your spouse.

In addition, you should consider mediation (negotiation) with your spouse, whether directly or through ourselves. We can offer a mediation service provided we have not already advised one of you or we can put you in touch with other mediators. You should ask for more details or pick up our separate leaflet on Mediation.

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