Starting the Divorce

If you are wondering when you can divorce and what the first steps should be, our guide will explain the stages and the timescales for a divorce.

1. After one year of marriage either spouse may start the divorce. He or she is referred to as the “Petitioner”. The Petition is completed and sent to the Court together with the marriage certificate. The costs of divorce include the court fee paid to start the process, along with your solicitor’s fees.
2. Within a few days of sending the Petition to the Court, the Court sends a copy of the divorce Petition to the other spouse, referred to as the “Respondent”. A copy of the Petition is also sent to anyone named in the adultery Petition (though naming a third party is strongly advised against). That person is referred to as a “Co-Respondent”. If the Respondent (or Co-Respondent) has instructed solicitors, the Petition is sent to their solicitors rather than directly to them.
3. From the date the documents are received the Respondent has strict time limits to observe;
   • Within 7 days he or she should send the Court a form called an “Acknowledgement of Service” which accompanies the Petition. The form asks the Respondent whether they intend to defend the Petition and whether any claim for costs is disputed.
   • Within 29 days of receipt (or longer if the documents have to be sent to an address abroad), whether or not an Acknowledgement of Service has been filed, the Respondent must, if he or she intends to defend the Petition, file a document setting out their objections to the Petition (called an “Answer”). The Petition then becomes defended and the procedure outlined below does not apply.
     Defended divorce proceedings resulting in a fully contested hearing are very rare.  This is usually because the costs are prohibitive and entirely disproportionate to the outcome. However, if an Answer is filed, it is inevitable that there will be a delay in finalising the divorce.
4. A few days after receiving the Acknowledgement of Service from the Respondent (and Co-Respondent), the Court sends a copy to the Petitioner.
5. If the Respondent is not defending the Petition, the Petitioner can apply for the Decree Nisi to be pronounced. The Petitioner’s solicitor prepares a Statement in Support of Divorce (“the Statement”) for the Petitioner to sign, confirming that the contents of the Petition are true. It will also state whether any circumstances have changed since the filing of the Petition. The Petitioner must confirm that they believe that the facts in the Statement are true. The Statement will then be sent to the Court, with the request for a date for the first decree of divorce (“Decree Nisi”) to be pronounced.

What Causes Delays in a Divorce?

1. What if the Acknowledgement of Service is not returned to the Court?
   To progress the divorce the Court will need to be supplied with proof that the Respondent and any named Co-Respondent have received the Petition. This may involve arranging for someone to deliver the Petition personally. In exceptional circumstances it is possible to obtain a Court Order where proof of service does not need to be given. This is called “dispensing with service”.If the Respondent (and any Co-Respondent) does not return the Acknowledgement of Service Form this will delay the divorce procedure. It will also add significantly to the cost of obtaining a divorce.
2. The Court usually sends the papers to the Respondent by post including the Acknowledgement of Service.  This is now done by email now, as most solicitors use the HMCTS Online Divorce Portal making the process far quicker and more efficient.  This is for the Respondent to complete, confirming receipt of the divorce papers and whether or not the divorce will be defended. It is almost unheard of these days for a divorce to be defended.
3. There can be arguments about the details of the allegations in the petition. This happens most frequently where unreasonable behaviour is given as the ground for divorce.  In this situation the Respondent might insist on parts being changed, or left out, before returning the Acknowledgment of Service to the Court. Where this dispute arises, further delays are inevitable as is an increase in the costs of the divorce proceedings. It is therefore important to resolve it as quickly and simply as possible by negotiations to reach a compromise. We will almost always encourage clients to agree the contents of the divorce petition before it is submitted to the Court.
4. If costs of the divorce proceedings have been claimed against the Respondent, it may give rise to further questions being raised before the Acknowledgement is returned.If the Respondent just ignores the papers, service has to be arranged in some other way, usually personal service by a County Court Bailiff or a private agent. The Bailiff/agent proves the papers have been served and the divorce can then proceed.
5. Sometimes it is just not possible to find the Respondent.  The Petitioner then has to apply to the Court to go ahead with the divorce without the Respondent being involved.  The Petitioner must be able to show that they have made a very extensive search for the Respondent, which usually involves employing an enquiry agent.

Next Steps in the Divorce Process

1. What happens when the Court receives the Statement in Support and application for a date for pronouncement of the Decree Nisi?
   When the Respondent has been served, the Petitioner can apply for “Directions”.  Here the case is placed in the Special Procedure list with a request for the Decree Nisi (see below) to be pronounced by the Court. The Special Procedure list is the Court’s list of undefended divorce cases. Once a divorce case is put into that list, the District Judge considers whether the Petitioner has proved the grounds for divorce. To apply to place the divorce in the Special Procedure list, the Petitioner must complete a Statement in Support of their Petition. The Statement will contain information on the evidence to prove the grounds for the divorce (if applicable – usually in separation petitions) and whether the Petitioner and Respondent have been living together since the Petition was first issued. Usually your solicitor will complete the Statement on your behalf and send it to you for your approval.
2. If the Judge is not satisfied as to the grounds for divorce, the Court might ask for more evidence from the Petitioner or, very rarely indeed, order the matter to be heard in Open Court.  The District Judge looks through the papers and if they are in order, gives a certificate for the Decree Nisi to be pronounced (a Certificate of Entitlement). The Judge will also confirm what, if any, orders the Court intends to make for the Respondent to pay the Petitioner’s legal costs. Both the Petitioner and the Respondent (through their solicitors) are then advised on the date fixed for the Decree Nisi and Cost Orders to be made (if applicable).Depending on the Court’s diary, the date is likely to be a few weeks after the application received by the Court.
3. It is rare to have to attend the Court for the pronouncement of the Decree Nisi. You will usually only be required to attend (it is your choice, in most cases) if there is a dispute about whether the Respondent should pay the Petitioner’s legal costs.  In such circumstances your desire to attend the hearing will need to be communicated to the Court, as well as the other party, at least 14 days before the Decree Nisi pronouncement.
4. The Decree Nisi is an order of the Court confirming that the grounds for the divorce have been proved and that the marriage has irretrievably broken down. It does not however mean that the Petitioner and the Respondent are actually divorced, which comes only with Decree Absolute (see below), so you may not remarry at this point. The Decree Nisi is actually read out by a Judge in Court, though more often by an Usher outside of the Courtrooms these days.

Applying for a Decree Absolute

1. There is a six week period before the Petitioner can apply for Decree Absolute.  During that six week period anyone can apply to Court to say that there should not be a Decree Absolute.  Though this is only likely to be the case where there are other facts that the Court should know about. It is almost unheard of and the six weeks is just a period of waiting before applying for Decree Absolute. The pronouncement of the Decree Nisi is important, however, in terms of agreements around the marital finances. Once pronounced, either the Petitioner or the Respondent can then ask the Court to sort out the matrimonial property and money at a hearing – until then the Court can only deal with applications for interim maintenance.
   • 6 weeks and 1 day after the Decree Nisi
     The Petitioner may apply for the final decree (“Decree Absolute”) by sending the appropriate form to the Court. This step is not automatic. The Court will not simply grant the Absolute after this period of time and it needs to be applied for by either party.
     It is usual for to wait until the finances have been settled before applying for the Decree Absolute. On receipt of the application, the Decree will be processed and may be dealt with on the same day. The Decree Absolute finally dissolves the marriage
   • 3 months after the Petitioner could first have applied for the Decree Absolute
     The Respondent may apply for the Decree Absolute if the Petitioner has not already done so. However, the application process is different to that for the Petitioner. It requires a formal application to be made and often the Court will list the matter for a short hearing to understand why the Petitioner has not made the application. The Respondent will also have to pay a fee to have their application heard.
2. The Decree Absolute is the last part of the divorce. This ends the marriage – the parties are then divorced and are free to remarry. In practice, an application for Decree Absolute by the Petitioner is approved by the Court in a matter of days – it is nothing more than a rubber-stamping exercise, usually.  It is a little more complex when the Respondent applies for Decree Absolute. On receipt of the application the Court will set a date for a short hearing, notifying the Petitioner. A copy of the application has to be sent to the Petitioner. At the hearing the District Judge will give the Petitioner an opportunity to explain the reason why they have not applied for the Decree Absolute. If there is no justifiable reason for the delay then the District Judge will grant the Decree Absolute. It is worth noting that if a Decree Nisi is more than a year old before an application for Decree Absolute is made, the Court will require an explanation as to why the application has not been made within that time. Often, the delay is caused by the parties resolving their financial claims against each other.  As long as the Court are satisfied that the parties have not resumed cohabitation, or indeed their relationship, the Decree Absolute usually follows without a problem.

Can I get divorced before the financial issues have been agreed?

Usually, couples will resolve their financial matters at the same time as the divorce proceedings. However, if your financial issues are complex, or the parties are not able to resolve the division of the matrimonial assets by agreement, it is often not possible to complete the financial issues before the time the divorce can be finalised. In these circumstances the final stage, the application for Decree Absolute, can (and usually will) be postponed until all matters have been resolved.

Effects of Divorce

Once you are divorced, you are free to remarry. If you do not resolve the matrimonial finances from your previous marriage before remarrying, then you do prejudice future applications you may wish to make in relation to that previous marriage.

Your entitlement to Benefits may change, so make sure you get advice on this. Also your entitlement to pension through your former spouse is likely to change. Divorced people can often still take advantage of their ex-spouses National Insurance contributions to qualify for a State Pension, as long as they do not remarry. Your income tax may also be affected.

Any gift by Will that you have made to your spouse (or a gift by them to you) is ineffective after divorce. So it is advisable to review or make a new Will at this time, which we can advise you about. There are quite a few matters to consider at this point and you might like to start considering these now and how they are going to affect you after a divorce.

Finally, a wife who has taken her husband’s name on marriage would normally still continue to be known by that name. If you would like to revert to your maiden name, it is advisable to ask your solicitor to draw up a Change of Name Deed. With this document you formally prove the change to any relevant party, most importantly the Passport Office. Any child who wishes to change their name at the same time, and is under the age of 16, will need their father’s consent. If this situation arises, or is likely to arise, contact your solicitor for further advice.

There are many aspects of divorce that can seem a bit daunting but we are practical and approachable so we will help you through. You can call us on 01608 686 590 or email us to arrange an appointment with Ian or Laura.