Guide to Divorce Procedure
Throughout the process, explained below, we will give you objective and balanced advice and endeavour to keep areas of conflict to a minimum.
Issuing the Petition
Both documents are filed at the Court and served (by post) on the Respondent and they will acknowledge that they have been served by completing a form provided to them by the Court (The Acknowledgement of Service).
If you wish to instigate divorce proceedings you will be known as the Petitioner and will instruct us to issue the Divorce Petition. Your spouse will be known as the Respondent. The Divorce Petition is a form giving the parties’ details, the grounds for divorce and the facts relied upon.
There is one ground for divorce – The marriage has irretrievably broken down.
There are five facts that can be relied upon to prove that the marriage has irretrievably broken down:
- Two years separation with consent
- Five year separation
Ancillary Relief in the Petition
The Divorce Petition also allows for the Petitioner to include a claim for all forms of ancillary relief (financial claims). It is standard practice to include a request for all of the financial claims that are available and does not necessarily mean that you want to pursue these claims.
A claim for costs may be included in the Divorce Petition and it will depend upon the circumstances of your divorce whether, for instance, costs will be claimed against the Respondent, or whether each party will bear their own costs.
If you are the Petitioner the draft Divorce Petition will be sent to you for approval and, once approved, it is good practice to send it to the Respondent or their solicitors, out of courtesy, before issuing, in order to attempt to agree the content.
Statement of Arrangements for Children
If you have children under the age of 16 or between the ages of 16 and 18 and in full time education, you must also complete a Statements of Arrangements for Children. This form gives background information in respect of each child and gives details of where they will live and go to school after the divorce.
The Divorce Petition will then be lodged at the court together with your original marriage certificate, the Statement of Arrangements for Children, a Statement confirming whether we have discussed conciliation with you, and the court fee of £410.00.
The court will issue the Petition and serve a sealed copy with the Statement of Arrangements for Children annexed on the Respondent together with a blank Acknowledgment of Service. There are special procedures in the event that you do not know the Respondent’s address, or if the Respondent refuses service.
Divorce proceedings have now commenced.
Acknowledgement of Service
The Respondent completes this form and returns it to the court within 14 days of receipt of the divorce papers and the court will send a copy to us. If the Respondent indicates on this form that they intend to defend the divorce, an Answer must be filed within 28 days, otherwise the matter proceeds as an undefended matter, which is far more usual.
Affidavit in Support of Petition
We will then make an application for directions. You will be required to complete and swear an Affidavit confirming that everything stated in the Divorce Petition is true. This Affidavit provides the Judge with evidence of the fact relied on in the Petition and of irretrievable breakdown of the marriage. It also replaces the need for you to attend court and give oral evidence, assuming the judge is satisfied with the content. You will also be asked to identify the Respondent’s signature on the Acknowledgement of Service.
The Judge will then fix a day for the pronouncement of the Decree Nisi and make an Order regarding costs.
This will be pronounced in open Court on the date fixed by the Court. Both parties can attend if they wish, but this is not a requirement and the parties do not usually attend unless the Judge is not satisfied with any of the arrangements for the children of the family, when it is open to the Judge to call a brief informal hearing to discuss the arrangements with the parties.
The District Judge will consider the application for Decree Nisi. The Decree Nisi does not free you from the marriage. The marriage is only dissolved once Decree Absolute has been pronounced.
This cannot normally be pronounced until after six weeks from the date of pronouncement of Decree Nisi. We will lodge a form applying for Decree Absolute together with the Court fee. The Respondent does not have to be given notice of this application.
The Judge must be satisfied that there is no reason why the decree should not be made absolute, for instance a pending appeal. If he is satisfied, he will issue a certificate, sent to you and the Respondent, certifying that the Decree Nisi has been made absolute and giving the date on which this was done. Both you and the Respondent will be free to remarry from that date.
If you have made a financial application, you will probably be advised to delay applying for Decree Absolute until an order in respect of finances is in place. This is to protect your position, as you may lose rights, for instance in respect of pensions, after Decree Absolute.
Initial instructions to Decree Nisi need only take eight to twelve weeks depending on how quickly the court processes the paperwork and the amount of time the parties spend in dealing with it as well.
Decree Nisi to Decree Absolute takes a minimum of six weeks, but this will depend on whether there is a financial application. In exceptional case, Decree Absolute can be expedited.
You may come to see us, but have doubts as to whether you really want a divorce. If you do not wish to separate and/or divorce, we cannot offer you practical assistance, but there are numerous agencies that do offer such assistance and we can give you details of these.
Once it has been accepted that the marriage has broken down, conciliation assists the parties to reach agreement regarding matters such as the matrimonial home, children etc and reduces conflict to a minimum. There are increasing agencies being established to offer mediation and counselling and we can assist in providing the names and addresses of agencies.