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Guide to Divorce and Dissolution of a Civil Partnership

In this guide we will provide information on the legal process and requirements for divorce and ending a civil partnership, along with advice on important things to consider and the associated cost implications.

Ending a marriage

Divorce can be one of the most stressful and emotionally challenging

events in your life, and it is therefore crucial to obtain sound legal advice from a family law solicitor to guide you through the potential difficulties of the process.

It is important to point out at this stage that the rules relating to divorce and the dissolution of a civil partnership are essentially the same.  The exception is adultery, which is a legal term that applies to heterosexual relations only.  If your partner has been unfaithful to you within a civil partnership, this would be cited as unreasonable behaviour.

When your marriage comes to an end, there will often be a number of issues to address, including childcare, money, the division of possessions and housing.

You and your partner may decide upon one of the following options:

  • An informal separation with no court attendance
  • Separation by drawing up a separation agreement
  • A formal separation by divorce

 

Informal separation

An informal separation allows you and your spouse to come to agreements on a number of issues, such as childcare and the division of assets, without the involvement of the courts. This route can reduce the amount of emotional strain placed upon couples divorcing formally through the courts, and also save you significant legal costs.

You will need to inform some or all of the people listed below:

- Your benefits office, if you're in receipt of a welfare benefit such as income-based Jobseeker's Allowance, income-related Employment and Support Allowance, Pension Credit or Income Support

- HM Revenue and Customs, if you receive tax credits

- Your local council, if you pay council tax or receive Housing Benefit or Council Tax Reduction.

If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do ever go to court. It is important to note that any agreements made are not legally binding and would require court involvement to render them so. Furthermore, a court may change an arrangement made by a couple that it considers to be unreasonable or if it's not in your children’s best interests.

 

Separation with a separation agreement

If you and your partner have not yet decided whether to divorce or dissolve your civil partnership, or you are unable to, this can be a useful option as it leaves open the possibility of reconciliation. You are also not required to go to court.

A separation agreement can set out how you wish to deal with financial arrangements, property and arrangements for the children. Examples of what may be included in the agreement are:

  • Living arrangements
  • Not to disturb, annoy or molest the other partner
  • Who will pay the mortgage / rent
  • Who the children should live and have contact with

Who will provide financial support / maintenance for the children.

 

DIVORCE

You may apply for a divorce if you have been married for at least one year and the union has irreparably broken down.  The marriage must be recognised by UK law and you must have a permanent residence in England or Wales.

If you and your partner both agree to divorce, it is called an undefended divorce. If one of you does not agree, it is deemed defended.

Undefended divorce

An undefended divorce is dealt with in family court. You typically do not require a solicitor for the procedure itself, although it may be useful to take advice from a solicitor to establish whether there are sufficient grounds and what evidence may be required. If there are complexities – e.g. you and your partner cannot resolve disputes over children or money, etc., or domestic violence is involved - it may be advisable to use a solicitor.

There are 3 main steps to getting a divorce:

  1. Filing a divorce petition – apply to the court for permission to divorce, citing the reasons you wish to end the marriage
  2. Apply for a decree nisi – if you partner does not contest the petition you will receive a document informing you there is no reason you cannot divorce
  3. Apply for a decree absolute – this can be applied for six weeks after the decree nisi – to legally end your marriage.

 

Grounds for divorce

For the court to grant you a divorce, you must prove that there has been an irretrievable breakdown of your marriage.  You can give 5 grounds for divorce:

  1. Adultery. If either you or your spouse has had sexual relations with a member of the opposite sex, and you or your partner can no longer bear to live with the other. Details of the adultery will be required by the court – times and places, etc. – for it to establish that adultery has definitely taken place.  Adultery cannot be cited as a reason for divorce if you and your husband or wife lived together for six months after finding out about it.
  2. Unreasonable behaviour. If you or your partner have behaved so badly that one of you can no longer bear to live with the other, a divorce may be granted. Examples are mental or physical cruelty, dominating a partner or refusing to pay for housekeeping.
  3. Desertion. This means that one party has ‘walked out’ on the marriage without good reason and without the other party’s agreement, for a continuous period of 2 years out of 2.5. Desertion can still be claimed even if you have lived together for six months. In practice, desertion is rarely relied upon as grounds for divorce as intention can be difficult to prove.
  4. Living apart for 2 years. You may be granted a divorce if you and your partner have lived apart continuously for more than 2 years and both agree to the divorce (in writing) as a court will accept this as an irretrievable marriage breakdown.
  5. Living apart for 5 years. This is usually sufficient grounds for divorce, even if one party contests it (with, for instance, the claim that it would cause unreasonable hardship).

 

Filing for divorce

In order to start divorce proceedings, you must complete a divorce petition form, available from the court or from the Ministry of Justice website – www.justice.gov.uk.

If your husband or wife lacks mental capacity, and is, in reference to the Mental Capacity Act 2005, deemed unable to take part in legal proceedings by a medical professional, you are able to file for divorce, but you need to source a ‘litigation friend’ – for instance a family member or friend – to represent them. If there is nobody suitable, available or willing to act as a litigation friend, the Official Solicitor, whose role it is to intervene to protect the interests of those who cannot act for themselves, may agree to do this.

You must include your full name, husband’s name and address, marriage certificate (original or copy from a register office) and the details of any children, no matter how old they are.

Two completed forms must be sent to the nearest divorce court (three, if you are naming the person with whom your spouse had an affair) and you should retain a personal copy.

 

Responding to a divorce petition

The court will send you a divorce petition if your husband or wife has started divorce proceedings against you, along with acknowledgement of service and notice of proceedings forms. You must respond within 21 days, or your spouse is permitted to continue proceedings as if you have agreed.

If both parties agree to the divorce, no court hearing is required, and the court will grant a conditional order called decree nisi to pronounce that the petitioner is entitled to a divorce.

Should one partner not agree to the divorce, they are required to complete court papers called an Answer, stating why they do not believe that the marriage has irretrievably broken down. In rare cases, there may be a court hearing to establish whether a marriage has broken down, but, ordinarily, a defended divorce is resolved before reaching court.

If the court agrees to grant the divorce, 6 weeks* after the issue of the decree nisi the petitioner is able to apply for a decree absolute to dissolve the marriage. It is the final decree in a marriage, after which either party is free to remarry.

 

*If the decree absolute is not applied for within 12 months, the delay will need to be explained to the court.

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