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Splitting up

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Quick links

- Ending a Marriage and Separation
- Practical Steps to consider on Separation

-
The Divorce Procedure
- Legal Grounds for Divorce
- Ending a Civil Partnership
- Family Mediation


Ending a Marriage and Separation

If you are reading this, you may be thinking about leaving your partner or you may already have decided that this is something you want to do. You could already have discussed the idea and you may both be thinking the same way about it. Alternatively, you might not have spoken to your partner yet, or he or she might disagree with what you want to do.

Whatever stage you are at in the process, talking to someone can help, not just with the complexities of the divorce process but also to help you understand the potential consequences of any decisions you make.

To get a divorce in England and Wales, your marriage must have broken down irretrievably and in order to prove this you must rely one of the five facts listed below.

The five facts of divorce are:

The first two facts are known as immediate grounds for issuing a divorce petition as they require no waiting time. Recent statistics show that 54% of women and 36% of men issue petitions based upon unreasonable behaviour*. 

If you or your partner feels that they cannot continue with the marriage, either  can apply to the court to have the marriage dissolved. To do this, one of you must file a petition for divorce with the court.  The person issuing the petition is known as the petitioner and the other person is know as the respondent.

The divorce petition will contain evidence in writing of the ground for divorce that the petitioner wishes to rely upon.  It is this evidence (and any other the court requires) that the court will use to decide if the divorce is to be granted.

Sometimes the respondent will not want to be divorced and might try and stop the divorce. This is called defending the divorce proceedings. It is rare for divorce proceedings to be defended as this can be expensive and time consuming.  In our experience longer marriages tend to result in a petition based on two years separation. 

divorce


* ONS, December 2011

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The Divorce Procedure

1.  Completing the Petition

The petitioner (the person applying for the divorce) will need to complete the petition.  There are five different petitions, one for each of the different facts for divorce and you will need to identify the right one for you.    

We recommend that three copies of these documents are completed, one for the petitioner to keep, one for the court  and one to be sent to the respondent (your husband or wife).  If there is another person named in adultery proceedings you will need another copy to send to him or her.

These documents, with your marriage certificate and the relevant fee , must be sent to the court to start the divorce proceedings.

2.   What the court does

The court checks all the documents, and once satisfied that the forms are completed correctly they will issue the petition with a court reference number and a court seal. Copies of the petition (and if relevant a copy of the statement of arrangements for children) will be sent to the respondent. Also included will be a copy of the acknowledgement of service which is a form that the respondent has to fill in.

3.   The acknowledgement of service of the Petition

This form should be completed by the respondent within 8 days of receipt, to show that the divorce petition has been received and that they agree to the contents of the documents and to a divorce being granted.  If they do not agree they will need to complete a complete another form known as an answer within 28 days.

4.  The statement

Once the court has received the acknowledgement of service from the respondent a copy will be sent to the petitioner.  They must then complete the statement (D80) to confirm that the contents of the petition are true and ask for a divorce to be granted.  

5.   The Decree Nisi

The decree nisi is an order by the court stating the date on which a marriage will end unless a good reason not to grant a divorce is produced.

To obtain a decree nisi you will need to complete the relevant application known as a D84. In practice this is done at the same time as completion of the statement (above).

If all the documentation is correct then the court will set a date when the decree nisi will be pronounced (made).  This does not mean that the divorce is final at this stage, but will allow the petitioner or respondent to apply to make the divorce final at the appropriate time.

The granting of the decree nisi does not require either party to be in court unless there are issues with the arrangements made for any children.  When the order is made the court will send a copy of the decree nisi certificate to the petitioner and the respondent.

If for any reason the application for a decree nisi is unsuccessful the court will explain why.  More information may be required and the court will give you details of what you need to do next.

6.   Application for the Decree Absolute

The petitioner can apply 6 weeks after the date of the decree nisi.  A form known as a D36 needs to be completed and there may be a fee to pay. If the petition was started after 1st July 2013 you don’t have to pay a fee. 

If the petitioner does not apply, the respondent can make the application 3 months after the end of the six week period i.e 4 months and two weeks after the decree nisi is granted. For the respondent to make an application there will be a fee to pay.

Once the decree absolute is granted the parties are divorced.

7.   Effect of the Decree Absolute

The effect of the decree absolute and the finality of the divorce proceedings means that the parties are no longer treated as husband and wife in law.  This can mean some changes:

  • Inheritance laws mean that there are no longer any automatic rights to inherit property or goods.  At this point it is worth considering making  or changing your Will.
  • Pension rights may change as you may no longer be entitled to any benefits under company pension schemes.
  • Being divorced does not mean that the marriage assets are divided between the parties; that is a whole different story!

 

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Practical Steps to consider on Separation

Whether married or living together, separation usually means the breakdown of a relationship and the break up of a family unit.

When this happens it is important to try and organise things to help you to become more secure and more in control of you own circumstances. We have put together a list of things which callers to our service usually discuss:

  • Children: agree arrangements for contact trying to make sure things remain as amicable as possible.
  • Finances: it is important to maximise income and minimise outgoings.  It is in most cases very difficult to divide one household into two and absorb the cost of that with no difference to your day to day expenses so check;
  • Property: check the name on the title deeds or letting agreement to see who has a right to occupy the property.  If mortgaged check to see how much the monthly payments are and how much is outstanding.  This helps you to understand early on what the overall financial situation may be.
  • Draw up a budget to keep a check on outgoings.  If necessary open a new bank account to control relevant payments and to increase the feeling of security and control.
  • Consider the terms of any Will, or make one if you do not have one.
  • If working, check any death in service benefit and perhaps reconsider those who may receive the sums insured if necessary.
  • Make a list of everything in the property and discuss which one of you may have what.

Separating, divorcing and dividing financial assets can be a lengthy and expensive process but there is generally no rush to resolve these issues immediately. 

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Facts for divorce proceedings;

There are five facts that you can rely on to get to get a divorce. If there has been adultery or unreasonable behaviour and there is sufficient evidence for the court you can issue a petition immediately, but for the other facts you need to wait either 2 or 5 years. This period of time must pass before a divorce petition can be issued.

Adultery  

To get a divorce because of adultery, the respondent needs to have had sexual intercourse with a person of the opposite sex who is not his/her husband/wife.  The result of this must be that the petitioner can no longer live with him/her.  The usual method of proof for this isn’t hiring a private detective, but is an admission by the respondent.

If there was no adultery there can be no petition.  Behaving inappropriately, having an affair that does not involve sexual intercourse is not adultery but may be unreasonable behaviour.  Indeed, it is sometimes the case that a respondent will not admit adultery but will agree to accept divorce proceedings on the basis of their unreasonable behaviour.

It is important to be aware that you cannot use adultery as a fact for divorce proceedings if you live with your spouse for a period of six months after having discovered the adultery, unless the adultery is continuing. Living together can include sharing a house and household expenses and chores, even if you are not sleeping together. If you are still living under the same roof you may need to provide additional evidence for the court.

Unreasonable behaviour  

To apply for and be granted a divorce based upon unreasonable behaviour you must be able to show that the behaviour is such that that petitioner cannot reasonably be expected to live with that respondent.  The test is a subjective rather than an objective one.  In other words it is not for anyone else to think that they may be able to live with the behaviour complained of, but whether it is reasonable to expect that the actual petitioner can.

To prove this fact you will need to provide details of specific events/incidents.  We generally suggest that you give several significant types of behaviour and then provide detailed examples of that type of behaviour.

Again, it is important to demonstrate that due to the behaviour you can no longer live with the respondent and if you are still in the same house this could cause problems.

Similarly if you live together for more than 6 months after the last act of unreasonable behaviour complained of, you could be prevented from obtaining a divorce.

Desertion  

Petitions issued on the basis of desertion are statistically small in number, less than one percent of all divorces in England and Wales.

Desertion is not like separation and requires that your husband/wife has left you:

  • without your agreement
  • without a good reason
  • in order to end your relationship
  • for more than 2 years.

As with divorce proceedings for adultery and unreasonable behaviour, you cannot claim desertion if you have lived together for more than 6 months in this period.

Separation

For a divorce to be granted after either 2 or 5 years separation requires the parties to live separate and apart for that period of time.  The difference in the two periods is one of consent.  To divorce on the basis of two years separation requires the agreement (consent) of the respondent.  To divorce after five years separation does not require the consent of the respondent. The respondent can object to the divorce on the grounds that it would cause unreasonable hardship.

Living separate and apart can sometimes be difficult.  It is easily demonstrated where the parties live in different properties.  However it can be more difficult when the parties are forced to remain in the same home.  Very often this can be the case where children are involved and/or it is financially impossible to find alternative accommodation. If that is the case the court may require additional evidence of the separation and it will be necessary to prove that the parties live in separate households.

In each case the period of separation should be continuous although you are allowed to cohabit for up to six months during that period of separation.  That cohabiting time will, however, be deducted from the separation time.  In other words the clock stops running during the period of cohabitation and starts again (provided it is no longer than 6 months) once the cohabitation stops.

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Ending a Civil Partnership

You need to have been in a civil partnership for over a year before you can apply for a dissolution.  To apply it is necessary to prove that the civil partnership has irretrievably broken down which can be established by proving one of the following facts:

  • your partner has behaved unreasonably
  • you have lived apart for 2 years and you both consent to ending the civil partnership
  • you have lived apart for 5 years or more in which case your partner does not need to  consent to ending the civil partnership.
  • your partner has deserted you for a period of 2 years or more.

Unlike divorce proceedings it is not possible to end the civil partnership on the basis of your partner’s adultery.  The process is, however very similar using the same form, a D8.

A copy of this will be served on your partner and they will be given the opportunity to respond and agree to the dissolution. 

Once they have agreed you can apply for a conditional order using this form. After the conditional order has been made you can apply for the final order dissolving the partnership.  This application can be made 6 weeks after the date of the conditional order using this form.

As with a marriage, once the partnership has been dissolved, you will no longer be entitled to rights such as inheritance should your partner die intestate.

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Collaborative Law

As a relatively recent introduction to the legal framework, collaborative law, is designed to put you and your husband/wife in charge of the legal process rather than your solicitors. The purpose is to ensure that your priorities and concerns also become the priorities of the legal process.

The actual collaborative approach means that there will be meetings attended by you and your legal advisor with your husband/wife and their legal advisor.  Very much an American idea, and very likely you may have seen films where this happens, it is designed to make sure that any discussions are full and frank during that time.

 A further distinctive aspect of this process is the binding participation agreement.  This is signed at the start by all parties including the legal advisors. The significance of this is that everyone is then committed to the process and for seeking a financial agreement.  If no agreement is reached and you decide that court action is necessary, you will need to appoint new legal advisors to assist as those involved in the previous discussions cannot continue to be involved.

This process differs from mediation as there are advisors present representing both parties.  However it can have the same advantage by being more affordable and less time consuming.  For more information on the subject please see here.

 

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