How To Petition For Divorce
First you must have been married for a year before the date of your Petition for a divorce. You will not be able to do so until that time although you can rely on any issues that have happened in that first year to evidence why you should be granted a divorce.
Divorce is not automatic. You will need to justify why a court should grant this. This will mean that you can show the court that the marriage has irretrievably broken down and that is the only ground for divorce.
There are 3 basic steps in getting a divorce.
- Complete and file a Petition
- Apply for the Decree Nisi
- Apply for the Decree Absolute
The person filing the Petition is known as the Petitioner and the other spouse is the Respondent.
You can tick the box to inform the Court on which basis you are seeking the divorce. There are five different facts on which you can rely when seeking a divorce to evidence the irretrievable breakdown of the marriage. These are:
- 2 years separation
- 5 years separation
The legal definition of Adultery is:
Voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse.
If the person (Petitioner) claiming the marriage to have broken down as a result of the adultery continues to live with the person alleged to have committed the adultery (Respondent) for more than 6 months after finding out about it cannot rely on adultery petition.
The Court generally prefers that any third party is not named. A third party if the petition does include their details is known as the co-Respondent.
If you have already separated from the Respondent and they subsequently have a full sexual relationship with another person that is still technically adultery as you are still married to each other.
You cannot rely on an Adultery petition if you are the one who has committed the adultery.
A Petition based on this fact will only be able to proceed if the Respondent alleged to have committed adultery is willing to admit it. If not then a petition of divorce on this basis cannot succeed.
This need not be severe behaviour by the Respondent against the Petitioner. It can be one or more of different types of behaviour to show that you simply cannot live with that person any longer and it would be unreasonable to expect you to do so.
It might include:
- Verbal, Physical or Psychological violence towards you
- Financial misconduct/negligence
- Socially neglecting you
- Improper relationship with other men or women
- Lack of any loving relationship
Any behaviour to be set out in the Statement of Case should not be more than six bullet points ideally and it should concentrate on the behaviour you are complaining of that has taken place primarily within the last six months although you can also raise behaviour that goes back longer than that to show that this has been ongoing for some while.
This is where the Respondent has left the home for a continuous period of 2 years and you did not consent to the separation. It will not be classed as desertion if there is some reason that the Respondent could not return ie they are serving a prison sentence or they are working abroad.
This fact is little used and it is much easier to establish one of the other facts.
2 years separation
This is where you have been separated for a period of 2 years.
It is possible that you can be separated and still be living under the same roof provided you can show that you have lived separately and apart with independence of one another ie you are each responsible for the household chores, that you each contribute to the finances and that you do not continue with any form of family life such as eating meals together.
For this Petition to succeed you must both consent to the divorce. It is possible for the other party to withdraw their consent any time up to the Decree Nisi. It is also possible when a Petition is based on this fact to ask the Court not to grant the final decree until the financial issues have been resolved.
5 years separation
This fact can be used where you and your husband or wife have lived apart for at least 5 years. There is no need for the Respondent to agree to the divorce.
Other Information to insert in the Petition
Your personal details such as full name, date of birth and occupation and those of your husband or wife and where you last lived as a married couple together. Other details will be where and when you were married and the maiden name of the wife.
The Petition will also need to have the names and dates of birth of any children of the family.
The Statement of Case will need to be completed in the Petition. This will need to provide the detail setting out the reason why you are petitioning for divorce based on the chosen fact. It is this that will be justifying the reason for the divorce being granted.
The Petition will also allow the Petitioner to ask the court to make an order for the Respondent to pay the costs. The fact on which you are intending to seek to petition will depend whether you can seek costs.
Generally where the petition is not reliant on the consent of the other party ie 2 years separation it is possible to request that the Court orders either all your costs, half your costs, no costs or only to order that costs should be given if the petition is defended.
Finally there is what is known as the Prayer. This is the last part of the Petition. It is in this part that the Petitioner can request any and all financial claims.
Filing the Petition with the Court
Once the Petition has been fully completed and signed it should filed with the Family Court. You will need to provide:
- the original signed petition and two copies
- the marriage certificate
- a cheque for the court fee (unless you qualify for exemption)
The court will not generally accept a photo-copy certificate. If you do not have the original marriage certificate then you should apply to the registrar for another. The costs is approximately £9.00.
Currently the costs of filing for a divorce are £410.00.
If you are in receipt of benefits or on a very low income it may be that you will qualify for exemption of this fee. You should at first read the booklet EX160A that can be obtained from the court or the court website as the rules for being eligible are very strict as is the documentary evidence the court will require.
What happens after the Petition has been filed?
The Court will post a copy of the Petition and an Acknowledgement of Service Form to the Respondent at the address you will have provided within the document. The Respondent then has 14 days in which to complete the Acknowledgement of Service form and return it to the Court.
The Court will inform you and you can then move on to the next stage which is applying for the Decree Nisi.
What happens if the Respondent does not return the Acknowledgement of Service form?
The Court will not allow the divorce to proceed unless and until it is confirmed that the Respondent has knowledge of the proceedings.
As the Court only use the post for sending these documents it is always possible that the Respondent has never received them and it would be wrong to end the marriage unless both parties know about the proceedings and the Respondent has the opportunity to object.
It may be the arrangements will have to be made for the Respondent to be personally served with the documents. As Petitioner you cannot do this yourself. Either the Bailiff from the Court or a Process Server should be instructed to deal with service.
On having been personally served a statement will be provided to the Court by the person who carried this out and the Court will then be prepared to continue with or without the cooperation of the Respondent.
The only time this will not be the case is when the Petition is based on 2 years separation with consent. The fact that the Respondent has failed to complete and return the Acknowledgement will be interpreted by the Court as the Respondent having withdrawn his or her consent.
It will in that instance be necessary to issue a petition on one of the other facts available.
Applying for Decree Nisi
The Court will provide a form to be completed and filed with the Court. This is not sent to the Respondent and there is no fee.
Once the Court has received this form the documents will be placed before the Judge. The Judge will decide whether the request for a divorce as set out in the Petition should succeed and if so will issue a Certificate of Entitlement on which the date will be entered for the pronouncement of the Decree Nisi. Although this is pronounced in open court there is no need for any attendance.
Applying for Decree Absolute
After the Decree Nisi has been pronounced and a period of six weeks and a day have passed you can apply for the Decree Absolute. This is the final certificate and will dissolve your marriage.
It is a simple application and does not go before the Judge. The Clerk will issue the Certificate. There is no additional fee for this.
As a result of your marriage and its’ subsequent breakdown there are certain financial claims that you will each have against the other.
These claims can only be dismissed within a court order (although sometimes through re-marriage). It is important that you consider this carefully before obtaining the final decree dissolving your marriage as in certain circumstances one party may be disadvantaged by leaving these financial claims until after the divorce is concluded.
If you should wish to discuss any issues relating to our Fixed Fees for Divorce or any aspect of family law including finances on the breakdown of the marriage please call one of our solicitors at Bevan Evemy on 0333 320 8600.