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Divorce - Law and Procedure
Divorce in England and Wales is currently governed by the Matrimonial Causes Act 1973, but there will be major changes when the Family Law Act 1996 comes into force. The following describes the existing process, but it should be remembered that it is possible to have a Formal Separation without rushing into what may become an acrimonious legal battle. FNF encourages all parents to consider using Mediation wherever possible to reduce conflict.
Note that divorce law is different in Scotland, Northern Ireland and the Channel Islands.
An application for divorce can only be made if one or both of the spouses has been habitually resident in the jurisdiction for a year or more. The only ground is that the marriage has irretrievably broken down, but the applicant ('the petitioner') must prove one of the following:
- Adultery
- Unreasonable behaviour
- Desertion (after two years)
- Two years separation (with consent)
- Five years separation (without consent)
Evidence of adultery or unreasonable behaviour cannot be used if the spouses have continued to live together for more than six months after becoming aware of it, and periods of separation must be continuous. Around 70% of divorce petitioners cite adultery or unreasonable behaviour.
The process has two stages, the decree nisi (granted when grounds have been established) and the decree absolute (not normally made until financial and property matters - Ancillary Relief - have been resolved). The process can be stopped by agreement at any time before the decree absolute.
The divorce petition is made on a standard form D8. The initial fee is currently UK150.
If there are any children of the marriage (or treated as a 'child of the family') who are under 16 or in full-time education then a Statement of Arrangements for their future must be filed with the divorce petition. The marriage certificate should be sent to the court at the same time, together with the fee. The court will send the documents to the other spouse ('the respondent') after processing, together with an Acknowledgment of Service Form which must be returned within seven days.
Defending a divorce is ultimately doomed to failure, but where false allegations have been made in the petition it is important to counter them as they can affect future contact with your children or lead to costs being awarded against you. Where the ground of 'unreasonable behaviour' is cited there is a tendency for the petitioner to exaggerate or invent (many solicitors encourage their female clients to do this), but the court will accept almost anything as 'unreasonable behaviour' so it is not necessary for allegations of violence to be made. It can be a good negotiating tactic to defend a divorce until such allegations are withdrawn.
If you wish to defend the contents of the petition you must file a reply (known as an Answer) within 28 days. It is often possible to negotiate during the 28 day period to avoid a defended divorce and the possibility of the other side applying for costs - you can write to the other side saying that you intend to defend the divorce if the grounds are not amended (specify the items you want removed and provide an amended draft).
Even if you do not defend the divorce you can still refute the 'particulars' of the petition by making a statement and attaching it to the Answer. There may be numerous 'particulars' listing your perceived faults as examples of 'unreasonable behaviour' but these are often gratuitous and unnecessary - almost anything is accepted as unreasonable if one spouse is determined to go through with the divorce. List those you do not accept in your statement.
Particulars of unreasonable behaviour which you should be particularly wary of are those which might undermine your future relationship with your children. Violence, alcoholism, drug dependency, mental instability (any reference to a need for 'counselling'), gambling or financial selfishness may all be used against you in any subsequent proceedings concerning your children. If your spouse only wishes to divorce you (rather than divorce you from your children) then these can be omitted or diluted. Do not follow the advice given by many solicitors to let them go through unchallenged.
Unless there is an amicable settlement between the spouses the divorce may have a profound and enduring effect upon your relationship with your children and your personal finances (thereby affecting your ability to maintain a relationship with your children). It may be advisable to insert clauses disallowing any further claims (e.g. future inheritance, lottery winnings) after the divorce before agreeing to any settlement.
If the respondent does not choose to defend, the petitioner will swear an Affidavit confirming the facts and file a Request for Directions on a standard form D84. The court will fix a date for the decree nisi and consider the arrangements for the children. If these are agreed then the court will usually accept them but if they are not then both parties will have to attend court for a decision.
Six weeks and one day after the decree nisi, the petitioner can apply for the decree absolute on a standard form D36 (current fee UK30) and when that is granted (there is no hearing) the divorce is final. If the petitioner does not apply for any reason then the respondent can do so after three months and will have a brief hearing before a judge.
Most standard divorce forms are available from the Court Service website.
New May 2008
Resolution have produced an excellent booklet on how parents can ease the process of divorce for their children - available online here.
Updated 13 October, 2005