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Divorce


Introduction

A divorce is the administrative and legal process of ending the marriage contract between a husband and wife. In itself a divorce can be a straightforward and relatively inexpensive procedure; provided there is little or no dispute on the "facts" – see below.

Cases can become difficult and drawn-out when the parties cannot agree the arrangements for the children, finances or property. These matters are dealt with separately from the actual divorce and unless both parties can come to a consensus they will be subject to separate Court hearings.

Grounds for Divorce

There is only one ground for divorce – that the marriage has irretrievably broken down. There are five "facts" upon which divorce proceedings can be commenced-:

  • unreasonable behaviour
  • adultery
  • 2 years separation with consent
  • 5 years separation without consent
  • 2 years desertion

Unreasonable behaviour  This is the most common fact relied upon in divorce proceedings. The petitioner needs to show, by setting out a number of allegations of unreasonable behaviour, that they can no longer be expected to live with the respondent. The allegations do not have to be excessive and can include a sexual liaison that falls short of intercourse.

Adultery   It must be shown that the respondent had sexual intercourse with a person of the opposite sex. The petition must be sent to the Court within 6 months of the petitioner becoming aware of the adultery – unless that adultery is continuing.The third party can be named as co-respondent; but this is not always recommended. It usually leads to the proceedings becoming more acrimonious, taking longer and costs increasing.

Two Years Separation with Consent   If husband and wife have been living apart for at least two years immediately prior to the presentation of the petition, and both agree to the divorce, then this can be one of the "facts" upon which proceedings can be commenced.

Five Years Separation without Consent   If one side will not agree to the divorce and none of the other "facts" are applicable then the husband and wife will need to have been separated for at least five years immediately preceding the presentation of the petition.

Desertion   This is a rarely used "fact" and covers the situation where one side has "deserted" the other for a continuous period of at least two years.

Steps in a Divorce

  • The petition is filed at Court setting out the details of the marriage, any children and the reasons for the divorce.

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  • The Court issues the petition and a copy is sent to the respondent.

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  • The respondent files an acknowledgement of service confirming, amongst other matters, whether they intend to defend the divorce.

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  • The petitioner files a sworn affidavit with the Court. This deals with certain legal technical matters. The petitioner also files a formal request for a divorce.

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  • A District Judge reviews the papers and decides whether the divorce can proceed to decree nisi.

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  • The decree nisi is pronounced in open Court.

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  • The petitioner can apply for the decree nisi to be made absolute after six weeks. If the petitioner does not apply the respondent can do so three months later, as long as they give notice to the petitioner.

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  • The decree absolute is pronounced at a Court hearing. The divorce is now final and the marriage is at an end.

The above process should be completed in 4 – 6 months. However, there may be delays if the respondent contests the divorce and/or documents are not returned to the Court in good time.

Costs

The costs of a divorce consist of our fees and those of the Court. Our costs will total between £500 - £1,000 plus VAT. The precise amount will depend upon a number of factors including whether the divorce is contested and whether the Court accepts the "facts". Court fees currently total £340.

We will always provide an estimate of our likely fees once we have the details of your case. In certain circumstances we may be able to agree a fixed-fee. Please note that these fees relate to the divorce and would not cover any related matters such as children, finances or property.

We will assess whether you are eligible for legal aid and will assist you in your application for public funding.

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We can assist in all aspects of your divorce and shall be pleased to have an initial discussion to explore the current position and provide appropriate and timely advice. Please contact Clare Ellison (clareellison@hhlegal.co.uk) or Sinead Connolly  (sineadconnolly@hhlegal.co.uk) on 0800 371 407.