To commence divorce proceedings in England and Wales you first need to be married.
This isn’t always as obvious as it sounds. We are frequently approach to advise on whether a marriage exists in the first place; potentially for reasons of bigamy or a question as to whether a foreign marriage ceremony is recognised in English law.
Assuming that the marriage is valid, you need to have been married for at least one year before commencing a divorce. If you haven’t been, you could consider judicial separation.
Either party then needs to file a divorce petition at a Family Court
Care needs to be taken when drafting a petition. You need to satisfy the court that the jurisdiction and grounds exist for the divorce to occur. Once it has been received by the court, the petition will be sent out to your spouse (who will be the Respondent in the proceedings).
The Respondent needs to acknowledge receipt of the petition
The rules provide that the Respondent must do this within 14 days, although in reality the court will do nothing of its own volition if no acknowledgement is filed within that time period. If that doesn’t happen then the Petitioner might look at other ways of demonstrating that the Respondent has the petition or considering arranging for the Respondent to be personally served with it, i.e. handed the form personally by a process server. In most instances the Court will not progress the divorce unless it is satisfied that the Respondent has received the Petition.
Can the Respondent defend the divorce?
Yes, but technically this can only happen through the Respondent filing the acknowledgement within the necessary time period indicating that they intend to defend the petition.
The application for Decree Nisi
Having received the acknowledgement of service from the court or some other evidence that the Respondent has have the petition, and assuming that the Respondent hasn’t indicated an intention to defend the petition, the Petitioner can apply for Decree Nisi. The Decree Nisi is the Court’s formal recognition of the divorce and represents the halfway stage. To make the application two forms being submitted to the Court, which will then list the Decree Nisi for pronouncement. There is usually no need to attend Court at all when the Decree Nisi is pronounced – at the Family Court in Exeter, it usually involves the judge reading over a tannoy the surnames of the Decrees being pronounced. A formal hearing is only usually necessary if the divorce is defended or there is an argument about who should pay the costs.
The application and pronouncement of Decree Absolute
The Decree Absolute brings the marriage to an end. It can be applied for by the Petitioner at least 6 weeks after pronouncement of the Decree Nisi. It requires completion of a relatively simple form, which is then sent to Court. At the Family Court in Exeter, Decree Absolutes tend to be pronounced within the week; however this can change depending on how busy the Court staff are from time to time. Again, there is no need for either party to attend Court if the Petitioner is applying for it. If the Petitioner doesn’t apply the Respondent can apply once three months have elapsed from the earliest date the Petitioner could apply for it. Ordinarily it requires a statement being filed and a hearing being listed at which both parties will need to attend. For this reason and the associated cost, it is often more sensible for the Petitioner to apply for the Decree Absolute.
On pronouncement of the Decree Absolute the marriage is at an end and both parties are in a position to remarry.
It is important to note that the discrete divorce process described above does not do anything to resolve financial issues. If nothing is done about this then the ability of either the husband or wife to bring claims against each other will remain open.
This means that your spouse can at any point after the divorce bring a claim for a share of your house, pensions, savings etc. It can also leave you exposed to a claim for maintenance. This also works the other way, in that you may have an entitlement to a share of your spouse’s assets, pensions or income.
It is critical that these claims are not overlooked. We offer a free initial consultation during which we can discuss these issues with you and provide you with guidance specific to your circumstances. Our clients find these sessions invaluable. If you are in any doubt as to your legal position it is important that you obtain this legal advice at the earliest opportunity.
Visit our family law page for more information or get in touch 01392 210700 or by email family.exeter@stephens-scown.co.uk