If you want to find out how to divorce in the UK, it is necessary to prove that the marriage has irretrievably broken down. BUT before you can do that it may be necessary to consider whether you are entitled to ask for a divorce in the UK.
For many people it will be quite clear that the UK is the right place as this is where they have always lived and are a UK national. However if there is an international element you need to consider carefully whether the UK.
Where the UK court can consider a petition of Divorce then a Petition should be completed and filed with the court. The person bringing the Petition is the Petitioner and the spouse is the Respondent.
The Petitioner needs to decide on what fact the petition is to based. Divorce is not automatic and it is still necessary to set out justification that a divorce should be granted.
How do I decide the fact on which to base the Petition?
There is only one ground for divorce and that is the irretrievable breakdown of the marriage. However there are five facts from which to justify the irretrievable breakdown.
- Adultery (you cannot use this fact for Civil Partnership breakdown)
- Unreasonable behaviour
- Separation of 2 years
- Separation of 5 years
- Desertion for 2 years
It is not possible to petition on your own adultery even if this is the case. Your spouse must be the one committing the adultery and they must also be prepared to admit this. There is no need to name the third person and indeed the courts would prefer that you did not.
If you do name the third party you will need to make sure that you send sufficient copies of the petition to the court for the third party to be served as well. They will need to respond to evidence they have received this.
By including the third party you are likely to cause additional difficulties in ensuring the papers are served which might in some circumstances add additional costs.
Adultery is defined as ‘Voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse’. Anything less than full intercourse is not technically adultery.
Where petitioning on the basis of adultery it is also necessary to show the Court that it is the adultery that has caused the breakdown of the marriage and that you find it intolerable to continue to live with your spouse as a direct result of the adultery.
If you continue to live with that person for more than six months after you learned of the adultery you will not be able to use this fact to petition on.
Behaviour does not have to be particularly gross or severe but you do need to show that it would be unreasonable to expect you to continue to live with someone who behaves in this way. Generally there should be no more than six allegations made.
The behaviour might be severe such as physically or mentally violent, financial misconduct, lack of any loving relationship
Separation for 2 years
For this fact it is necessary to be able to identify when you separated. This fact can only be used if your spouse is willing to consent to the divorce. If not then you will not be able to proceed on this fact. There is no need to say anything further in the statement of case other than the date that you separated, the fact that you have not lived together since that date and that your spouse consents. It may be that the respondent can require the divorce is not finalised until the finances have been dealt with.
Separation for 5 years
For this fact it is necessary to be able to identify when you separated. This fact can be used whether or not your spouse consents. There is no need to state any further allegations other than the fact of your separation.
Desertion for 2 years
This fact is very rarely used these days. This would be where your spouse has deserted you for a continuous period of 2 years.
The petition needs to set out the following details:
- when and where you were married
- your full names and the Wife’s maiden name
- the place you last lived together as a married couple
- the names and ages of any children
- the fact on which a Petition will be based
- a statement of case setting out why you claim a divorce should be granted
- whether you want the other party to pay all or some of your costs
- what financial claims you wish to make
What documents do you need to provide to the Court?
The Court will require the Petition to be completed together with two copies. In addition you will need to provide your marriage certificate (photo-copy will not be accepted) and the court fee.
What if I don’t have the marriage certificate?
You can obtain a copy of the marriage certificate online by registering with the General Register Office (GRO). Alternatively you can contact your legal Registry Office. There is a fee of £9.25.
How long will the divorce take?
The divorce proceedings could be completed in 3 – 4 months. There will be some circumstances where it is advisable to delay the application for the final Decree Certificate until the finances are resolved. It is advisable that legal advice should be taken at the earliest opportunity regarding whether the divorce should be progressed or not and what financial matters should be dealt with.
Do I need to attend Court?
If the divorce proceedings are not going to be defended or if the respondent is not going to take issue with the application that the respondent pay the costs (or a part of the costs) that have been claimed in the petition then there is no need for any attendance at court.
Does the Respondent need to take any action?
The court will send to your spouse a copy of your Petition and an Acknowledgment of Service Form. This Acknowledgement needs to be completed and returned to the court within 14 days.
Failure to do so will mean that the Court will not allow the petition to proceed as it will need to be sure that your spouse is aware of the proceedings.
If your spouse refuses to deal with this form then you may need to have to have them served personally and the Bailiff or Process Server who effects service will file an Affidavit with the court and at that point the divorce can proceed (the exception to this is if the petition is based on 2 years separation).
The respondent will not need to take part any further.
What is the next stage?
The petitioner can once the Acknowledgment of Service has been returned to the Court (or if the petition has been personally served) apply for the Decree Nisi to be pronounced.
This is basically confirmation that the Court has no objection to the divorce proceeding to the final certificate. It is not possible to look for the final decree for six weeks and one day.
The final part is the Decree Absolute and it is this Certificate that will dissolve the marriage.
There are financial claims that both spouses will have against the other as a result of the marriage and its’ subsequent breakdown. These claims will remain even when the marriage has been dissolved and it is advisable to take legal advice with regard to resolving these claims.
There may be issues regarding the children of the family and their future care. The Court will prefer that parents are able to deal with the arrangements for the children and where this is possible there is no need for any court order.
If you would like to discuss these matters further or any other issues relating to divorce or our fixed fees please call one of our solicitors at Bevan Evemy or just go to our contact page and leave your details and we will contact you.
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– How can i divorce my husband/wife?