What is required for a divorce?
You have to have been married for at least a year before you can apply for a divorce. To obtain a divorce you have to prove that your marriage has broken down “irretrievably”
. This means that one or both of you feel that it's impossible to stay married to each other. In order to prove your marriage has broken down “irretrievably” you have to satisfy the Court that you have one of the five grounds
listed in the Matrimonial Causes Act 1973 namely;
- Your wife or husband is guilty of adultery and you cannot live with them. A solicitor would normally obtain a confession statement before the divorce proceedings are commenced in order to ensure that there is proof of adultery. If your husband or wife would not admit the adultery you will need to speak to your solicitor as the situation is complicated and you may then wish to consider an alternative ground such as unreasonable behaviour (b) below).
- That your wife or husband's behaviour simply means you can't reasonably be expected to live with them. As with (a) this is a fault based divorce. It covers all sorts of behaviour. This ground can be used in situations where your partner will not admit their being unfaithful to you. To use this ground you will need to set out your reasons for divorce in a few short paragraphs. Single events that took place more than 6 months ago cannot be relied upon before you file your petition for divorce if you have lived together for a longer period than 6months since then. The Court will need to be satisfied that the behaviour is sufficiently unreasonable to justify a divorce under this ground. However, the Court will take into consideration behaviours which are subjectively unreasonable, that is, those which are unreasonable to the party starting the divorce but not necessarily objectively unreasonable to most people.
- That your wife or husband has left/deserted you for a continuous period of at least 2 years immediately proceeding the presentation of the divorce petition. The term Desertion simply means leaving your partner without his or her agreement, and without a good reason.
- That the parties of the marriage have lived apart for a continuous period of at least 2 years immediately proceeding the presentation of the petition and your husband or wife consents to a decree being granted. This ground is more commonly called a “no fault divorce”. It is possible to have periods where you have lived together as long as they do not add up to more than 6 months, and you have been apart for at least 2 years all together. You need your partner’s written consent to use this as your ground so you must get this before the proceedings start otherwise the divorce will fail. Sometimes it is possible for the parties to use this ground if they live in the same house but have been maintaining completely separate lifestyles within the same house, essentially having their own rooms and doing their own cooking and cleaning and so forth. If the latter applies to you, you may well need to consult with your solicitor as to the possibility of using this ground in your individual circumstances.
- Living separately for a period of more than 5 years. Your partner does not need to agree to this. They will not e able to defend the petition, but they are able to ask the Court not to grant the final decree because of factors such as major financial or other types of hardship.
The first 2 grounds are the most commonly used ones
because they do not require a period of waiting.
If the divorce is undefended there will be no need for either of you to go to Court. The case will be dealt with on the paperwork. Most divorces take around 6 months
from the time of filing the divorce petition to the final decree of divorce. However, some divorces can take much longer especially if there are money issues as in most cases you will need to sort out the financial aspects before
applying for the final decree.
Papers required to divorce:
- You will need a divorce petition. This is a technical document.
- You will need the original marriage certificate. If you were married abroad and your marriage certificate is not in English you will also need an official translation. If you were married in the UK and you do not have the original marriage certificate you will need to obtain a duplicate from the Registry of Births Deaths & Marriages.
- Statement arrangements for children. This is a fairly straight forward document which will also need to be completed if there are any dependent children. You do not need your partner’s signature but it may make sense to talk to your partner beforehand if you are on reasonable terms with them.
- There is a Court fee presently in the sum of £340 or alternatively if you are on a low income you can apply for fee remission so you do not have to pay the required fee. An application for fee remission is made on form EX160 and you will require supporting documentation.
It is always advisable to seek legal advice when considering divorce proceedings
to ensure that you receive the appropriate financial division of assets and that you and your children are protected along the way.