Getting a Divorce

A Hand Morgan & Owen Fact Sheet

The prospect of getting divorced can be daunting, but the process need not be difficult with the right professional help. Because a divorce can raise sensitive and personal issues, it is important to choose a solicitor who makes you feel comfortable.

• explain the divorce process to you;
• start the divorce action for you;
• once it is under way, keep you informed of any developments

You will only be granted a divorce if you can demonstrate that your marriage has suffered an “irretrievable breakdown”. To do this you must show that your marriage is beyond repair because:

• your partner has committed adultery;
• your partner’s behaviour is such that you cannot reasonably be expected to live with them;
• you have not seen your partner for two years or more;
• you have been separated from your partner for two years and have their agreement to apply for a divorce, or
• you have been separated from your partner for five years or more

We will be able to give you more details of each of these sets of circumstances and which is appropriate for you.

If a divorce decree is against your religion, we can give you advice about other forms of separation.

Anyone who has been married for at least a year and provided that either you or your partner has been living in England and Wales for the preceding year.

The legal formality of getting a divorce is a relatively straightforward process. What is generally much less straightforward is sorting out the practical issues association with a divorce, such as where each person will live, who gets what, and arrangements for any children. How long the divorce process will take depends on how co-operative you and your partner are and how quickly the court is able to process your case. A straightforward undefended divorce should take around five to six months from the date the divorce petition is issued.

In all legal documents and court actions, the person applying for a divorce is known as “the petitioner”, and the person they are divorcing is “the respondent”.

If you are applying for the divorce, we will usually start the process by writing a letter to your partner to tell them that you are planning to start divorce action. The letter will also recommend that your partner gets independent legal advice if they have not already done so.

We will send the divorce petition to the court. The petition sets out whether you will be asking your partner to pay for the costs of the divorce or to provide some other sort of financial support for you or your children. The court will send a copy of the petition to your partner or their solicitor to reply within seven days.

Once your partner or their solicitor has replied to the petition, you will need to confirm your intention to go ahead with the divorce application by making a sworn statement or “affidavit”. Your application is then lodged with the court.

If you have children under the age of 16 (or between 16 and 18 in full time education), you will need to fill in a form called a “statement of arrangements for children”. This asks for details about your children such as:

• who they will live with;
• where they are educated; and
• what your plans for them are, including any arrangements for visits by, or contact with, the other parent.

A copy of the form will usually be sent to your partner when we first write to them, inviting them to agree the arrangements.

When the court comes to consider the divorce papers, they will take this information into account to make sure that the children are properly provided for.

Once the court is satisfied that you should have a divorce, it sets a date and time for the judge to pronounce the “decree nisi”. You do not need to go to court for this. It is simply a statement from the court that the divorce can go ahead and the divorce papers are approved. You are not actually divorced at this stage.

If at this point you and your partner have not agreed who should pay the legal costs of the divorce, the judge pronouncing the decree nisi will make a decision for you.

Six weeks after the decree nisi, you can have the divorce made “absolute”. This legally dissolves the marriage. However, you are usually better to wait until financial matters (“ancillary relief”) have been settled before finalizing your divorce in this way

For more information, please contact Julie Wain at Stafford on 01785 211411, or Shani Carr at Rugeley on 01889 583871

Published on web site - April 2007

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.