Family Law Matters

Divorce Procedure in Simple Terms (Part 3)

The earliest date you can apply for your Decree Absolute is 6 weeks and 1 day from the date of the Decree Nisi. To do so you simply complete an Application form which is filed at Court with a fee (currently £40).

The Application does not need to go before a Judge and is simply processed by the Court office. The Decree Absolute is sent out usually within a week of receipt and is sealed with a red Court seal. It is important to keep the original as you may need it if, for example, you intend to remarry.

If you are the Respondent in the Divorce then you can also apply for Decree Absolute but not for a further three months after the Petitioner could apply. You will need to apply “on notice” and the Court will list this for a short hearing to decide whether the Decree can be granted on your application.

Once the Decree Absolute is pronounced this means that you are divorced and free to remarry. You should be aware that Divorce affects inheritance under a Will and you should therefore ensure that you take advice from a Solicitor specialising in Wills as it may be necessary to amend your Will.

Divorce Procedure in Simple Terms (Part 2)

Once the Petition has been sent to your spouse they will have 14 days to return the completed Acknowledgement of Service form to the Court.  If they do so the Court will then send you this form with the Court seal attached.

The next step is for you to have a Statement (known as an Affidavit) in support of your Divorce Petition sworn in front of either a Court official or a Solicitor. This is then filed at Court with an Application for the Decree Nisi, which is the first Decree to be pronounced.

The Petition, Affidavit and any other papers will next be placed before a Judge for his or her consideration.  If the Judge is satisfied with the Petition and other papers then the Court will list the Decree Nisi to be pronounced on a particular date.  The Court will send you a Notice advising you of the date for pronouncement.  You do not have to attend Court on that date unless there is a dispute in relation to the Divorce itself and it is usual that the Judge will simply pronounce the Decree Nisi in private.

The Court will then send the Decree Nisi to you and your spouse confirming when it was pronounced.  The Decree Nisi will state that you can apply for the Decree Absolute 6 weeks later.

Divorce Procedure in Simple Terms (Part 1)

Every undefended Divorce follows the same procedure through the [English Law] Courts and these few Divorce Procedure in Simple Terms articles show the practical steps which should be followed.

Once you have decided on a legal reason for the Divorce (i.e. adultery, unreasonable behaviour, two years separation, desertion and five years separation) then you will need to complete a Divorce Petition.  If you wish to deal with this yourself then you can get the Forms from the Courts Service website or from the Court free of charge.  Beware the website which offers a “cheap” Divorce as usually they are selling you the forms and guidance notes which you can get free from the Court!

If there are children then you will also need to complete a Statement of Arrangements for Children. 
The Petition and the Statement of Arrangements are then filed at the County Court with a Court fee of £300.

Next, the Court office processes these forms by issuing the Petition (i.e. logging it and giving it an individual case number) and then send copies to the Respondent (your spouse).  At the same time the Court will send you a Notice of Issue which will tell you when the Petition was posted to the Respondent and when they should have returned the Acknowledgement Form to the Court.

Can I have a "legal separation"?

If you don’t want to divorce but have separated you may be wondering about formalising the separation in some way. You may ask, is it possible to have a “Legal Separation”?

The term “Legal Separation” is not one recognised by the Courts.  Often when married couples separate they agree financial matters and may decide to enter into a Deed of Separation.  This is an agreement between the parties as to how they will divide assets etc. at that stage and is used as the basis of their financial Order within a Divorce.

Alternatively it is possible to apply to the Court for a Judicial Separation.  This is very similar to the procedure followed for a Divorce except that there is no final decree (the Decree Absolute).  Some benefits of using it are that you do not have to wait until you have been married for 12 months and the Court can become involved in deciding what happens with financial matters and can make an Order in this respect.

However, Judicial Separations are fairly unusual.  This is because people often feel that if they simply have to repeat the same procedure for a Divorce in the future then they may as well start Divorce Proceedings at this stage so saving the expense and time of repeating the process.

A longer separation – how about 5 years?

The fifth and final fact which can be used to prove that the marriage has irretrievably broken down is 5 years separation.  This means that the parties must have lived separately and apart for more than 5 years.

This can be done without the consent of the other party and this is where it differs from 2 years separation which requires the other party’s consent.

It is fairly unusual to use this reason as it is less likely that people will simply stay separated for this length of time without formally ending the marriage.  Often it is the case that one or other party has met someone else and wishes to remarry and would then apply using another reason at an earlier date.

It is not possible for the other party to formally defend a divorce on this basis but it is possible for them to prevent the final Decree being granted so that the Court can deal with financial settlement and the reason that must be given is that there will be financial or other hardship if a decree is granted.

This won’t mean that the final Decree is never granted but simply that either party must then apply to the Court to have financial matters resolved, unless an agreement is reached between them.