Whether a couple has mutually decided that their marriage is at an end, or there has been a final determinative event that has taken place, navigating the way forward post-separation can be extremely daunting.
On top of the emotional side of the separation in coming to terms with the end of a relationship, during the initial stages there are a lot of practical considerations such as where the spouses, and any children, are going to live and how the finances are going to be managed now that the family income may need to stretch to two households. In addition, the parties might wish to press ahead with divorce proceedings (sometimes for financial/tax reasons), but they don’t know where to start.
Here we have broken down divorce proceedings into five main stages, to help the process become less intimidating.
1. The Decision
Whilst it might seem obvious, a decision needs to be made as to when divorce proceedings will be commenced and by whom. This will sometimes depend upon the fact being relied on. In a lot of cases, couples have mutually come to the decision that the marriage is at an end but neither party is at fault, however they want to divorce straight away. In these cases, it’s best to discuss between you how the divorce is going to be approached. It might boil down to financial considerations, such as whether it is more cost effective for one party to petition e.g. if they might receive help with the court fee. These points can be discussed direct, in mediation or even through solicitors.
2. The Petition
The divorce process starts with a petition being sent to court by one of the parties. It is usually sent in draft to the other spouse before being sent to court. The petition will then be given a case number (known as issuing) and sent out to both parties (known as service). Depending on whether the proceedings are started online or on paper, the court will usually issue the petition within 2 to 3 weeks of receipt. The petition can be based on one of five facts: fault based – adultery, unreasonable behaviour or desertion; or no-fault – separation for 2 years (with consent) or 5 years (without consent).
3. The Response
When the other party is sent a copy of the petition by the court, they are also served with a form to complete called an Acknowledgement of Service. They are advised to fill out and return the form within 7 days, but this will sometimes take longer if they are taking their own advice. This form, as the name suggests, acknowledges receipt of the proceedings and requires the other party to confirm whether they agree to the proceedings continuing and to confirm their position in respect of any costs claims.
If this form is not returned, then the petitioner will need to prove service by alternative means, e.g. Court bailiff. Once service has been effected, the petition can continue.
4. Decree Nisi
This is the middle stage in the proceedings and the first of two Decrees. The petitioner is required to apply for Decree Nisi and send a short, pro-forma statement in support confirming that the contents of their petition are true and in some cases the living arrangements since separation. Decree Nisi is usually granted between 8 and 12 weeks from the date of the petition, depending upon any delays with service. The issue of costs will also be dealt with at this stage and any appropriate orders made. Decree Nisi also enables the Court to approve the terms of financial settlement if agreement has been reached by that stage.
5. Decree Absolute
The final Decree which ends the marriage can be applied for as early as six weeks and one day form the date of the Decree Nisi. Usually it is advisable to delay applying for the final Decree until the finances have been resolved. If the Petitioner has not applied for Decree Absolute after 4 months, then the other party can make their own application although if financial matters remain outstanding it will usually be accepted that finalising the divorce will need to be delayed.
Overall, the process takes around six months depending upon the issues.
For further information about any part of divorce and seperation, or to talk to one of our dedicated Family team, visit their hub page.
