What is it?
It is the legal process by which a marriage is ended formally, but it is also an emotional and physiological process, even if you are both in agreement that the marriage is over, and you have agreed how to resolve your finances. It can be a very confusing and distressing time, and there are some facts which it is useful for you to know.
To help you try and take the heat out of the situation is it always best to try and agree things between you. This can seem impossible when you just do not know how you both stand legally.
Here are some facts you should know
How long do we need to have been married?
For at least a year before you can start the divorce process, this does not mean that you cannot agree all the finances, the arrangements for the children, even that you will divorce, or that all the necessary paperwork cannot be prepared before the divorce process is started.
What if I need the help of the court before the year has ended e.g. because maintenance is not being paid, or assets are being disposed of?
Then we can make a court application for you to the magistrates’ court or if you may be able to apply for judicial separation if you can prove the same ground as for a divorce (see below) If you do apply for a judicial separation, it just means that the divorce process has to take place later and it can require payment of further court fees, it is usually possible to speed up the divorce process if this happens
Do we have to go to court?
Only if the case is defended ie they deny the allegations made in the divorce application (“Petition”) and they ask the court to stop your divorce going ahead, often they will not actually admit what you have alleged but they do not ask the court to stop the divorce they allow it to go on, in which case you will not have to go to court. Sometimes you may wish to take documents to the court or complete documents there if you do then you will just see the court administrative staff that is pleasant and helpful, but they are not allowed to give you advice.
Just to reassure you approximately 99% of divorces are undefended.
Do we both apply to the court?
No one of you applies (“the Petitioner”) the other responds (“the Respondent”).
So what does prove mean?
Proof means either that the court accepts that you have proved one of the 5 facts mentioned below. This is normally achieved by your spouse admitting what you allege against them, or in the case of unreasonable behaviour and 5 years separation if they do not deny it, by objecting to the divorce going ahead.If a case becomes defended i.e. they actually deny the allegations then the court has to be satisfied that it is more likely than not that they have behaved in the way that you have alleged; this rarely happens.
What do I have to prove to get a divorce?
That the marriage has irretrievably broken down, there are 5 separate ways (“facts”) to do this, and you only need to prove one of them.
Two grounds are available immediately, and involve some element of fault, the spouse at fault cannot ask the court for a divorce on the basis of their own fault, the other spouse would be able to do so, but they are not obliged to. If a spouse is at fault, this does not mean that they cannot start a divorce on the basis of the other spouse’s fault themselves.
1. Adultery this means a relationship between a man and woman who are not married to each other. It does not include same sex relationships although they are likely to amount to unreasonable behaviour so a divorce would still be available. If you live together after the adultery is discovered as husband and wife for a period or periods of 6 months or more you are taken to have forgiven the adultery and then you cannot apply to the court on the basis of this adultery alone, unless the adultery is still continuing. You may still be able to obtain a divorce on the next ground.
2. Unreasonable Behaviourthis is behaviour which us such that it is unreasonable for you to continue to live together, it covers a huge range of behaviour and not just violence e.g. untidiness, shouting and swearing, hurtful personal comments, dishonesty, financial irresponsibility, lack of affection and a reluctance or refusal to have sex or to communicate, if you wish us to confirm whether the behaviour is sufficient please ask us. Under this ground if you do live together as husband and wife for 6 months or less the fact that you have lived together is ignored by the court. If you have lived together for more than 6 months, the court take this into account in deciding if the behaviour was sufficiently unreasonable; you may well still be able to prove unreasonable behaviour despite this.
If neither facts 1 or 2 above apply then you will need to wait at least 2 years from when you separated to start a divorce.
, possibly 5 years (see below)
If you have been deserted which basically means they left you against your wishes and you have no idea where they are then 2 years after they went you can apply for a divorce, this situation is very rare.
4, Two year’s separation with consent
To apply under this ground you need to both agree to the divorce taking place, and you have to have been living separately for the last 2 years, you can in some circumstances live in the same house, each case would be evaluated on their own facts but broadly this means living not in any sense as a married couple and with separate cooking, cleaning, washing arrangements and separate rooms.
5, Five years separation
Again you can exceptionally live in the same house but this must be separately as indicated in 4 above. There is a technical defence to a divorce under this fact , this is of grave financial or other hardship being caused if there is a divorce, this is seldom applicable as now the court has considerable powers to make orders in relation to pensions to protect the spouse who has no pension as they lose any claim to the other spouses pension when the divorce is finalised ( see our pensionweb page). The court are not under any obligation before granting a decree absolute to consider the consequences on both spouses if they do so, but the court can be asked by either spouse in a divorce by way of a court application on this fact not to make the divorce final without sorting out the finances first. This application is available under this ground and under the 2 years separation ground if required.
There is no separation order that the court has power to make other than a divorce decree or a decree of judicial separation. If you are separating you can agree the finances and you should consider entering into a legal separation agreement, by which you can also agree when and on what basis a divorce will be applied for, this is a sensible option if there is no fault on either side or at least not enough as to amount to unreasonable behaviour for more specific information please see family@forths:separation
Will my spouse get to see the divorce papers before they go to court?
We will usually suggest that we send them a draft of the papers to consider, this can avoid upset and delay and retain the relationship that you have with them, we may agree amendments they request if you are happy with this and provided they will not mean that the divorce petition (application) is fatally weakened so that we cannot obtain the divorce from you.
If there is any risk of repercussions for you if we send the divorce papers out to them to consider we will not send them, but will send them to the court who will send them out to them.
I feel very bitter can I name the person with whom they have committed adultery in the divorce papers?
You can but we never advise it, naming them is never really worth it, sometimes naming them causes extra upset and resentment and causes you extra expense when the divorce is stalled as we are waiting for them to complete court paperwork. If you can recover costs from them to pay for the divorce this might be worthwhile but normally claiming them from your spouse is more appropriate. Often the agreement not to name them means that the divorce is not defended and or your spouse agrees to pay your solicitors’ fee for the divorce process ( this does not include work on the finances)