Can conflict ever be a good thing? In the context of divorcing and separating couples, the answer is probably not. Most people would agree that being in sustained conflict can...
Going through a divorce can be an isolating experience, leaving you feeling uncertain about the way ahead. Our Family Law specialists will guide you through the process, allowing you to take control of the situation. We can help you to make the decisions on arrangements involving children, property and finances that will shape your future and we will ensure that your rights are protected.
How long does a divorce take?
The divorce process usually takes between seven and nine months to complete, from the filing of the divorce petition with the Court to the pronouncement of the Decree Absolute (the final certificate which legally dissolves the marriage).
What are the grounds for divorce?
When petitioning for divorce, you must be able to prove the marriage has broken down irretrievably due to one of the following circumstances:
- Unreasonable Behaviour
- Two years separation (if both parties agree to the divorce)
- Five years separation (if there is no agreement)
However, following a recent landmark case, the government has taken a major step to introduce ‘no fault’ divorce in England and Wales. Although this is not yet law, the proposal will make provision for a couple to be allowed to apply for a divorce simply on the basis their marriage has broken down irretrievably. Any attempt to block a divorce by one spouse against the wishes of the other will be prevented by law.
Currently, unless grounds of adultery or unreasonable behaviour apply, couples must be separated for two years and both consent to the petition before commencing divorce proceedings, or for a five-year period if one spouse opposes the divorce. When the law has changed, these rules will be replaced by the requirement for couples to engage in a minimum six-month reflection period, with the opportunity to seek reconciliation, before the divorce is finalised. Couples will also be permitted to apply jointly for divorce.
What happens next?
The Petitioner is the person issuing the petition at the Court. The Court Office then sends the divorce papers to the other party (the Respondent) who replies by completing the Acknowledgement of Service. This shows whether they intend to defend the case. If the proceedings are undefended, the Petitioner completes a Statement in Support of the petition which contains a statement of truth in support of the divorce petition and applies for the Decree Nisi at the same time. At this first stage, the divorce papers go before a Judge who reviews the paperwork and decides whether he/she is satisfied that the petition can proceed. This decision is confirmed by the Court and a Certificate of Entitlement to a Decree is produced which provides the date for pronouncement of the Decree Nisi. Neither party is required to attend the Court for the pronouncement unless there is an issue regarding who is to pay the divorce costs.
The Petitioner cannot apply for the Decree Absolute to dissolve the marriage until six weeks and one day has passed since the pronouncement of the Decree Nisi. If this application is not made, the Respondent can make an application once a further three months has passed.
It is often the case that Decree Absolute is not applied for until a financial settlement has been reached. This is because there are some benefits that a widowed spouse would be entitled to which would be lost if Decree Absolute had been pronounced and their spouse died before the financial settlement had been reached.
Until pronouncement of the Decree Absolute, the parties remain married.
You should each provide full and frank disclosure outlining your finances.
As with all aspects of a divorce, we encourage making amicable arrangements to deal with finances to be formalised in a legal document called a Consent Order. This is then sent to the District Judge following the pronouncement of the Decree Nisi (the certificate granted when a Court is satisfied that the petitioner is entitled to a divorce). If the Judge is satisfied that the financial agreement is fair, he will make the order.
If amicable arrangements cannot be made, financial remedy proceedings are issued at the Court and a Judge will assist with reaching a financial settlement or, if matters go to a final hearing, make the decision for you.
What will a Judge take into account?
- Your income, earning capacity, property and any other financial resources you both have
- Your financial needs, commitments and responsibilities now and in the future
- The standard of living you enjoyed before the breakdown of the marriage
- Your ages and duration of the marriage
- Any physical or mental disability of each spouse
- Any financial contributions which each spouse has made or is likely to make
- The value of any benefits, such as pensions, which one spouse may lose as a result of the divorce
- In very exceptional circumstances, conduct
For more information on dealing with financial arrangements in a divorce, please read our blog on the issue.
Pension rights must be considered when you are splitting their assets. There are several ways this can be done. Generally, it will depend on what you decide, otherwise it is determined by the Court, possibly with the assistance of financial expert intervention. Ask your pension provider for a valuation of your pension fund before making these decisions.
There are three methods of taking pension rights into account in a divorce settlement – pension offsetting, pension earmarking and pension sharing. We recommend that you take independent financial advice in order to fully understand the process and get value for money.
This is a complex part of the divorce process and we are happy to spend time with you explaining the options available to you.