Often before people pick up the phone and call a divorce lawyer they will have ruminated over it for months or even years. Everyone’s journey to that point is different. Some clients will consult a lawyer and then wait a period before filing for divorce, others will mend their marriage before they ever do. But typically that call is the first step in the divorce process.
Once you have made that difficult decision what immediately follows is largely procedural. The lawyer you instruct will guide you through the process. Outlined below are the main steps you will move through to end your marriage.
To get divorced in England or Wales, you or your partner need to be habitually resident or domiciled here, and to have been married for at least a year. Ending a marriage generally involves three parts: ending the marriage legally (which is essentially administrative), splitting the finances, and making arrangements for any children. The latter can be more difficult particularly where there are complex personal circumstances, and depending on how amicable the split.
Your divorce petition is the Form D8. You will need to file your divorce petition in triplicate along with your marriage certificate in court or your nearest divorce centre. Your petition will give details about your marriage and why you want to bring it to an end, pinned to one of five facts: adultery, unreasonable behaviour, separation (either after two years with consent or five years without) or desertion. Lawyers will generally advise to prepare an anodyne petition, with unreasonable behaviour evidenced with sufficient detail to convince the court but kept bland enough so as not to aggravate emotions at a sensitive time. They will also generally look to share this draft with the spouse ahead of time.
The court will post you a notice of issue and a copy to your spouse. When it reaches them, divorce papers have been served. They then must return the Acknowledgement of Service within seven days. It is uncommon and discouraged for a divorce petition to be ignored or defended. Your solicitor will pursue this if it is the case.
Some people have to or choose to continue sharing the matrimonial home with their spouse. It is down to the individual to make whatever personal arrangements work for you and your spouse during your divorce.
If you will have difficulty paying your legal costs or living without financial support from your partner, you might take out a litigation loan, and apply for interim maintenance from your partner.
As you move towards the end of your marriage you will have to make some difficult and complicated decisions with your partner, in particular about children, finances, and any shared assets you have. Typically couples will need guidance as to fair arrangements and may have a number of disputes. Ideally you can try to resolve disputes and come to some agreements through private arbitration, round table meetings with your lawyers or mediation and if that is not possible, by taking your spouse to court to litigate.
You may need to apply for a financial order to be made by the court. This will require both parties to fully disclose their assets using a standard form, Form E, providing details of all bank accounts, and one year’s worth of statements for each account plus details of all other assets held and income.
You may also need to make an application for child maintenance, or any number of orders relating to parenting disputes including a child arrangements order, specific issue order or a prohibited steps order. CAFCASS, the Children and Family Court Advisory and Support Service may need to prepare a welfare report on you, your spouse and children, in order to advise the court on what they believe is in the child’s best interests, particularly regarding where the child should live if in dispute. Capital provision for your children’s needs will be considered as part of your overall divorce settlement but where a paying parent lives abroad, or earns above the CMS maximum, it is possible to apply to the court for child maintenance.
If your spouse is not defending the divorce, you can move forwards and ask the court to decide whether the reasons stated in your petition are sufficient for the divorce to be granted. This part of the process requires you to fill out Form D84: an Application for a Decree Nisi, and the pertinent form from D80A through to D80E statement in support which correlates to which of the five facts stated in your divorce petition.
The family law judge will examine all of your documentation and review your grounds for divorce. If approved, your Decree Nisi will be sent to you, usually about two months later.
It is unusual for a petition to be rejected. However the recent high profile case between Tini and Hugh Owens was one such example. Mr Owens took the unusual step of defending, (rejecting) his wife’s divorce petition when it was served him. A judge subsequently found the evidence in the divorce petition to be too flimsy for the divorce to proceed, a decision held up in the Supreme Court in July. The case has been picked up by family lawyers as demonstrating the unsatisfactory state of law in which one party has to evidence the other’s unreasonable behaviour in order to prove to the court that the marriage has irretrievably broken down.
When the Decree Absolute is issued your marriage is dissolved. However from the issuing of the Decree Nisi, there are time-limits before you can apply for Decree Absolute. This is 6 weeks and a day for the petitioner, and 4 and a half months for the respondent. Typically the petitioner will apply. You will file Form D36: a Notice of Application for Decree Nisi to be made Absolute with the court. Finally, you will be sent by the court a Decree Absolute which officially ends your marriage.
Decree Absolute effectively ends your marriage. If you have come to satisfactory arrangements regarding your finances and any children, then you can simply move on.
If you have not come to agreements regarding children or finances, then you may have to pursue further court applications.
Some people who have taken a married name choose, at this point, to change it back. You can use your Decree Absolute and marriage certificate to revert your ID and bank accounts back to your previous name, if you choose. If you do so you will have to inform the DVLA but can otherwise use your old passport until expiry.
Many divorces, particularly involving international and high net worth individuals, are not that straight-forward. The following examples are just a few instances that can throw up difficulties in a divorce: