Who can start divorce proceedings?
Either party can issue divorce proceedings provided that the couple have been married for more than 1 year and one or the other of them resides in England or Wales.
The person who commences divorce proceedings is known as the ‘Petitioner’ and his or her spouse is known as the ‘Respondent’.
A divorce is a largely administrative process, provided the spouse being divorced does not defend it. In most cases, the procedure is completed in four to six months.
What are the grounds for starting divorce proceedings?
There is only one “ground” for divorce: that the marriage has completely broken down and any reconciliation is impossible. In an undefended divorce this will have to be proven to the Court by giving written evidence and the person starting the divorce process (the petitioner) will need to establish one or more of the following five facts:
- the respondent (the other spouse) has committed adultery (this can include sexual relationships entered into after separation)
- the respondent has behaved unreasonably (the ‘seriousness’ of this behaviour is less important than the effect it has had on the petitioner)
- the respondent has deserted the petitioner for two years or more (this is very rarely used as grounds for starting divorce proceedings)
- the couple have separated and have been living apart for two years, and the other spouse gives consent to start divorce procedures
- the petitioner has lived apart from the respondent for five years or more (in this case, no consent is needed from the respondent)
A divorce petition will be drafted and filed at Court outlining proof that the marriage has irretrievably broken down.
The Court will serve the proceedings on the Respondent, who should indicate whether they agree to the divorce or not, by completing an ‘acknowledgement of service’ form provided by the Court.
If the Respondent agrees to the divorce and returns the ‘acknowledgement of service’ form the divorce will proceed without delay.
If the Respondent fails to acknowledge service the Petitioner will have to consider making an application for ‘deemed service’ or asking the Court bailiff to personally serve the Respondent. This will delay the proceedings and result in additional costs.
Once the Court is satisfied with the grounds for divorce, notice will be given for the date on which the Decree Nisi is to be pronounced.
The Decree Nisi (from Latin Nisi, meaning “unless”) is the legal document which confirms that the court can see no reason why the parties cannot be divorced.
The Decree Nisi is the first of two orders granted by the Court necessary to bring the marriage to an end. The Decree Nisi is not the final order and you cannot remarry at this stage.
Once the Decree Nisi is pronounced, the Petitioner can apply for the final order, the Decree Absolute.
What is Decree Nisi?
When the Decree Nisi is applied for by the petitioner, the Court lists it to be pronounced. The Decree Nisi is the first decree of divorce. It means that the papers are accepted by the Court, and that the ground for divorce has been approved by a Judge.
The Decree Nisi does not mean that the marriage has ended. That only happens on Decree Absolute.
The Decree Nisi is pronounced in open Court, after the judge has considered all the papers, and confirmed the case in suitable for a divorce. It is very rare for anybody to attend Court to listen to their Decree Nisi be pronounced.
How long after decree nisi can I apply for Decree Absolute?
There is a minimum period of a clear six weeks after Decree Nisi before the decree can be made absolute. In some situations it is possible for the decree absolute to be held back until the financial issues have been finalised. For example, if you are getting divorced on the basis of separation for two or five years, you can specifically ask for the final decree to be postponed until the finances have been dealt with. This is because divorce proceedings are complete and the marriage is formally over once the Decree Absolute is pronounced. This means that you would no longer be a widow or widower and might lose out on some pension entitlements if your former spouse dies.
In certain circumstances the court can refuse to allow a decree absolute, for example, where there are any unresolved disputes over the children hence the Latin meaning ‘unless’.
If your spouse wants to get a divorce and you disagree with this or with the reason that has been stated for the breakdown of your marriage, then you are legally entitled to defend it. However, a divorce should only be defended if you have a valid reason for doing so, otherwise you could spend a lot more money just to delay the divorce process.
The Law Society does not encourage anyone to defend their divorce unless they have a sufficient reason for doing so. The reality is that it can be quite difficult to successfully prevent divorce proceedings, so defending a divorce without good reason can sometimes simply increase the costs and prolong the inevitable.
How we can help?
AS Solicitors is based in South East London within close proximity to the London Courts and to specialist London barristers in the Inns of Court with expertise in family law issues. We are increasingly the choice for clients living in South East London.
Our aim is to provide you with an efficient service that minimises delay, resulting in a more cost-effective process for you. Having an expert to rely on will minimise the stress and worry associated with your divorce, and will allow you to focus on your family and your future.
Please call us right away for a consultation to enable you to judge our approach and to discuss what steps may be appropriate to protect your position in your own individual circumstances.
T: 020 8318 4345
Divorce Solicitors and Lawyers in South East London, Lewisham, Lee Green, Hither Green, Greenwich, Blackheath, Eltham.