In this special feature, Stowe Family Law solicitor Nastassia Burton talks us through the basics of getting divorced.
More than half of all marriages in Britain end in divorce. Whilst you can separate, agree arrangements for children and divide your assets informally, there are many pitfalls. For example, neither of you will be able remarry (unless you plan to commit bigamy!) without a divorce. Getting remarried may not be a priority at the moment but that may change in the future. And yes, you may be able to agree how to divide the finances at the time of separation, without a court order setting out an agreement, but there is always the risk that one of you may apply to the court for further financial provision in the future. For security and clarity, you should carefully consider all your options with a specialist solicitor.
If you have decided to divorce, the next thing you will need to decide is where to divorce. You may be able to divorce in a number of countries. This is important as the choice of country could have significant financial consequences. The family courts’ authority to grant a divorce in England/Wales depends on whether or not at least one of the spouses has a sufficient connection with the country. The rules are complex and will depend on the legal concepts of ‘habitual residence’ (the place you live and regard as your settled place of residence) and ‘domicile’ (the country you regard as your home).
To start proceedings in England/Wales, the ‘petitioner’ must file a ‘divorce petition’ with the court to show the marriage has “irretrievably broken down”, and then prove one of five facts, namely “adultery”, “unreasonable behaviour”, “desertion”, “two years’ separation with consent” or “five years separation without consent”. Despite popular misconceptions, if a spouse has committed adultery or acted unreasonably, they are not usually punished in the financial ‘remedy’ proceedings, unless their behaviour has been pretty extreme and affected the parties’ financial position.
The court will then sends the petition to the ‘respondent’ (ie the other spouse) with an ‘acknowledgment of service’. This asks the respondent whether they intend to defend the petition, whether any claim for costs is disputed and whether they agree with what is said in the petition.
If one party does not accept that the marriage is over, that party may seek to defend the proceedings but such proceedings can be drawn out, extremely stressful, and very expensive. Moreover, if your spouse has petitioned for divorce, this is a very clear indicator that there has been a serious breakdown in the marriage. A respondent should be realistic and consider their options as defended divorces are very rare.
Once the acknowledgment of service is completed and returned, the petitioner can apply for ‘decree nisi’, the interim divorce decree. After six weeks and one day, the petitioner can apply for decree absolute, the final divorce decree.
Nastassia Burton has been an integral part of the Stowe Family Law Cheshire team since 2008. She deals with all work relating to the breakdown of relationships and relationship finances, and cases involving children.