Divorce and separation

A divorce is a formal termination of a marriage by the courts. As long as you have been married for at least one year either party to the marriage may apply to the courts for the marriage to be dissolved, subject to satisfying the following grounds and "facts" set out below. Generally speaking, a party has to be habitually resident or domiciled in the uk to start divorce proceedings here, although the rules can be complicated and we can advise you further on this issue as appropriate. There is only one formal ground for divorce in this country, namely that the marriage has irretrievably broken down. The court will also need evidence proving the ground for divorce, which can be shown by reliance on one of the following "legal facts":

Your evidence is set out in a document called a petition. If you file for divorce you are called the petitioner and your spouse is called the respondent. If there are children of the family then an additional form is required to accompany the divorce petition setting out the current and proposed arrangements for the children. You will also be required to provide either your original marriage certificate or a certified copy of the document.

Once the court staff have processed your petition, it will be sent to your spouse together with an acknowledgement of service form. Once this form has been completed by your spouse and returned to the court then the application for your decree nisi may be prepared. At this point the district judge considers your petition and decides whether you are entitled to a divorce. The court will then set a date for the formal pronouncement of the decree nisi, which may be a week to a month or so later. However, this is only the first part of the divorce and you remain married until the decree absolute has been pronounced. You can apply for the decree absolute at any point after six weeks have elapsed from the date of your decree nisi. However, you may be advised by your legal representative to delay applying for your decree absolute if financial matters have not yet been fully resolved between you and your spouse.

In all, the divorce can take as little as five to six months from start to finish, although if your finances are complicated or disputed by your spouse, then your case is likely to take longer to resolve.

If you and your spouse do not intend to divorce at this stage but wish to formalise an agreement you have reached regarding financial matters upon your separation, then it may be possible to prepare a separation agreement of deed of separation incorporating such an agreement. If you and your spouse subsequently decide to divorce the separation agreement can be used as evidence of the settlement reached at the time of your separation, although it cannot oust the jurisdiction of the court to make further financial provision for either spouse upon divorce should the court consider it appropriate. However, as long as both parties have had the opportunity to obtain independent legal advice prior to entering the agreement, there has been full disclosure of each person's financial position, there has not been undue pressure by one party over another to sign, and the terms of the agreement are properly recorded and are fundamentally fair to both parties and take into account any children of the marriage, then the courts will often uphold a separation agreement upon divorce. Such agreements can also be entered into between unmarried couples wishing to record the terms of a financial settlement on separation.

For further information or to arrange an appointment with a member of our family department please telephone 01492 895444.