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The Divorce Process Explained
Everybody understands what a divorce is, and what it means for one’s family life. However, when it comes to understanding exactly
to obtain one, many people are unaware of what is needed. Naturally, this can cause great stress at a time when it is certainly not needed.
We have outlined below what to expect when obtaining a divorce to show that, in the vast majority of cases, it can be less daunting than it seems. With reference to the flowchart below, here are the steps for obtaining a divorce in England and Wales. Please note that the following explains the process for an
divorce (which constitutes the vast majority of divorce cases in the UK).
1. Issue of the divorce petition
Currently, almost every divorce must be issued by filling out and filing Form D8, better known as a
. This form is also used for the dissolution of same sex civil partnerships; thus, the same process applies. This is the official start of the divorce process. Before this, however, you should notify your spouse or their solicitor that you intend to start divorce proceedings (unless there are good reasons for not doing so). A fee of £550 is currently payable for issuing a divorce petition.
There are certain criteria which must be met in order to file a petition. Firstly, you must have been married for at least one year. Your petition will be rejected if this is not the case. Secondly, the court must be able to deal with your petition. This primarily revolves around whether you and/or your spouse are habitually resident or domiciled in England and Wales.
There is only one ground for divorce in England and Wales, which must be included in the petition – that the marriage has broken down irretrievably. Whilst this sounds simple enough, a court cannot rule that a marriage has broken down irretrievably unless one of five facts are proved to demonstrate such a breakdown. You only need to argue one fact.
Two years’ separation with the consent of your spouse
Five years’ separation Once filled out, including the sole ground and chosen fact, you can then file your petition with the Family Court ready to be sent to your spouse.
2. Service on spouse (‘the Respondent’)
Once filed with the court, your spouse will need to be served with a copy of the petition, along with what is known as an Acknowledgement of Service Form. This essentially acts as a receipt so that the court knows that your spouse is aware of the proceedings. Service is usually effected by the court, although you can request for this to be done by your solicitor if you wish.
Along with the Acknowledgement of Service form, the Respondent will receive a copy of the petition and formal notice of the divorce proceedings.
3. Acknowledgement of Service
Once these documents have been received, your spouse should then fill out the Acknowledgement of Service Form and return it to the court, who will then forward a copy to you.
In the case that your spouse does not acknowledge service, or you encounter problems, a process server may be needed to personally serve the petition on your spouse so that a formal statement of service can be sent to the court with an application for deemed service. In some cases, the court may dispense with service altogether.
4. Application and issue of the decree nisi
Once your spouse has acknowledged service of the petition, you may now apply for
is the legal term for the first decree made by the court in a divorce, which is its way of giving a preliminary view that the court has no cause to believe that you should not be granted a divorce.
Along with the application form for decree nisi, you must file a statement in support of your application to confirm that the contents of your petition remain unchanged and you wish to proceed with the divorce.
In deciding whether to grant the decree nisi, a judge will consider the merits of your application and statement in support. If satisfied that the marriage has broken down irretrievably, they will grant a certificate of entitlement for decree nisi and pronounce the decree soon afterwards. You and your spouse will be sent a copy of the decree nisi by the court. If the judge is not satisfied with your position, they will give directions which will likely require you to provide further information in support of a divorce.
5. Application and grant of decree absolute
Once you have received your decree nisi, you may apply for the decree absolute, the final step in the divorce process. However, you must wait six weeks and one day from the date of your decree nisi to do this. This is a statutory waiting period so the timescale must be adhered to.
Notice of Application for decree nisi to be made absolute can be done using Form D36. No further fee is payable at this stage. The court will grant the application if it is satisfied of a number of criteria. These mainly concern whether your spouse has opposed the decree nisi, either by application to revoke or by appeal. If you fail to apply for the decree absolute, your spouse may do so after four and a half months from the granting of decree nisi.
6. Once decree absolute is granted, you are now legally divorced.
You will need to review your Will on divorce. Your Will does not automatically become invalid on divorce but any gift to your former spouse will take effect as if he or she died on the date of your decree absolute. It is therefore best to make a new Will or review an existing Will immediately after divorce, especially if your spouse was a beneficiary or a trustee named. We can recommend a number of private client lawyers who will be able to help you review your Will or assist you in preparing a new Will.
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