Family Department - Divorce

Divorce - The Procedure and Timetable

The mechanics of obtaining a divorce nowadays are usually quite straight forward - particularly if the couple agree that the marriage is over.

The difficulties tend to lie rather in resolving the related practical issues stemming from the divorce such as how to separate, who will live where, arrangements for the children and overall financial matters.

The following is a broad outline of the divorce process, highlighting key areas and setting out the sort of timetable to expect.

1.Who can start divorce proceedings?

Once you have been married for over 1 year, either party may apply for a divorce, so long as the marriage is recognised as valid in England and Wales.

2.On what grounds can a divorce petition be started?

The only ground for a divorce is that the marriage has irretrievably broken down. However, a divorce will only be granted if one of the 5 facts laid down by MCA 73 proving irretrievable breakdown, is established. These are :-

(a) Your Spouse has committed adultery AND you find it intolerable to continue living together.

(b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.

(d) You and your spouse have been living separately for 2 years or more and your spouse agreed to the divorce.

(e) You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

3. If the marriage has "irretrievably broken down" and one of the 5 facts applies, what happens next?

This will depend upon your particular circumstances. It is often sensible to try to obtain your spouse's consent to the petition and to try to reach agreement over the contents. Once the petition has been drafted, you may then apply to the court to commence divorce proceedings.

4. How is the petition arranged?

Every petition contains basic information about names, addresses, ages of children and a statement that the marriage has irretrievably broken down. It will also state the "fact" on which it is intended to rely.

The petition will include a section (known as a "prayer") which will include a request for the divorce to be granted. It ,may also include a request for an order relating to children, a claim regarding the costs of the divorce, and an order for financial provision upon divorce.

5. What about the children?

A form is sent to the Court with the divorce petition which will outline the arrangements relating to the children. The law encourages couples to try and agree with those arrangements. The form (known as a "Statement of Arrangements") is usually completed by the person applying for divorce. Preferably it should be sent to the your spouse before it is sent to court. If agreement is not reached, this does not prevent the divorce from proceeding. Disagreements relating to the arrangements for the children will be dealt with separately.

6. How much does the divorce cost?

This depends on the finances of each party to the divorce. Those who are unemployed or on a low income are likely to be eligible for advice under the Legal Help Scheme. This means the state will pay the majority, if not all, of the solicitor's costs. However, you may be required to repay these costs to the Legal Services Commission out of any money recovered or property preserved from any settlement within the divorce proceedings. Those who are ineligible for Legal Help or Public Funding will be responsible for paying their own costs but will be provided with an estimate of the likely amount of costs.

7. Are financial issues dealt with before the divorce is finalised?

It is not necessary for financial discussions and any settlement terms to be completed by the time the divorce is final. Frequently they will still be in the early stages if finances are complicated. However, it should at least be possible to resolve immediate problems and make temporary maintenance arrangements.

8. How to keep costs down!

It is advisable to try to reach an amicable agreement with your spouse in relation to your financial settlement. Your solicitor will help you to work out what is likley to be a fair deal for you in the circumstances. If agreement is reached, the terms can be incorporated into a Consent Order, which can be signed by the Judge. This will keep the all important costs down to a minimum, reduce stress and anxiety to both parties.