Options for Divorcing or Dissolving a Civil Partnership
When a couple are married or in a civil partnership and they want to separate there are five options open to them to deal with the breakdown of their relationship, to make the best arrangements for their children and to resolve financial issues between them. The options open to couples in this situation are as follows:
A divorce can only be obtained if the parties have been married for more than one year and the marriage has broken down irretrievably. The divorce process is governed by the Matrimonial Causes Act 1973 under which the sole ground for divorce is the irretrievable breakdown of the marriage.
The marriage must have broken down for one of these reasons:-
- Your spouse has committed adultery and you find it intolerable to live together
- Your spouse has behaved in such a way that that you cannot reasonably be expected to live together
- You have been separated for two years and your spouse agrees to the divorce
- You have been separated for 5 years
- Your spouse deserted you more than 2 years ago.
Divorce proceeding are begun in the county court. The reason for the breakdown of the marriage forms the basis of the divorce application, known as the ‘ petition’. It takes on average six months from the date of the issue of the petition until the Decree Absolute in even the most straightforward of cases but that depends on the complexity of each case and the practice of the particular court. There are two Decrees. The Decree Nisi is a provisional Decree which is pronounced in court six weeks and one day before the Petitioner can apply to finalise the divorce. A judge will never pronounce decree nisi unless they are satisfied that suitable arrangements have been made for any children of the marriage. It is advisable to wait until settlement has been reached in relation to financial matters before filing for decree absolute. Financial matters relating to the family home, maintenance, pensions, savings, debts and investments also need to be dealt with. The legal term for this is ancillary relief.
This is a formal way of separating. Compared with the number of divorce petitions filed with the Court, judicial separation is comparatively rare; sometimes used for religious reasons or because the parties have been married less than a year. As with divorce, one party files a petition but the petition does not say that the marriage has irretrievably broken down and it does not end the marriage. However, the petition has to be based on one of the five facts (a) to (e) referred to in the section above relating to divorce. Judicial separation proceedings are begun in the county court.
The court has power to make any orders applied for in relation to children, domestic violence and financial matters although it does not have the power to make a final order dismissing the financial claim of one party against the other as the marriage is not at an end. It also cannot make a pension sharing order.
The marriage the couple have entered into may be void or proceedings are issued in the county court and the court has powers to make orders in relation to children and financial matters.
The parties each enter into a written agreement called a Deed of Separation, which is usually drawn up by solicitors setting out the terms reached between the parties. This is often done where it is not possible to file a divorce or judicial separation petition immediately, or when the parties chose to wait for a two year separation period. Whilst it is capable of being a binding contract, it is possible that a court (in subsequent divorce proceedings) might decide not to enforce it. However, if both parties had obtained legal advice before entering into the Deed and entered into it without coercion, then the court is likely to make an order reflecting its terms.
A couple may decide that they want nothing formal at all but simply agree to physically separate and make their own private arrangements. Such arrangements are unlikely to be legally enforceable.
Read further about separation for same-sex couples and cohabitation
The www.justice.gov.uk website in leaflet EX50 explains the court fees in full. In brief, the issue fee for a divorce/nullity/judicial separation/ civil partnership petition is £410 which now includes the fee for final decree. There are also various informative leaflets on the www.justice.gov.uk website that outlines in detail divorce procedure D183 etc.
It doesn't matter which party issues the divorce petition; it has no bearing on financial or children matters except in very extreme cases of unreasonable behaviour e.g. attempted murder. If the divorce is defended, the position is much more complex.
You do not need a solicitor to get divorced but it is always advisable to seek legal advice in relation to financial matters. Some solicitors now operate a fixed fee scale of charges. Legal aid is no longer widely available for divorce proceedings although if you are seeing a mediator and are legally aided you will be entitled to Help with Mediation if you instruct a solicitor who undertakes Family Legal Aid work.
National Family Mediation (NFM) is a network of professional family mediation providers based in England and Wales that work with families affected by relational breakdown. All providers aim to help clients achieve an outcome that works best for them and their family
If you would like to get more information about mediation and/or make an appointment you can contact NFM direct on 0300 4000 636 or you can contact a NFM family mediation provider in your area.
All services also take referrals from Solicitors, the court or other helping / support agencies.