This is the first in a 4 part review of the divorce process entitled Petitioning for a Divorce.
The first step in a divorce suit is the filing of the divorce petition. This is by the Petitioner. The Petitioner in a divorce can be either the husband or the wife. The divorce petition requires that the grounds for the divorce to also be stated in the petition.
There are 5 grounds for divorce, being adultery, unreasonable behaviour, separation or desertion.
Who can divorce?
In order to obtain a Divorce in England or Wales, you and your spouse must:
- have been married for at least one year;
- and have grounds for divorce.
- meet the residence rules; and
- have a marriage recognised as valid by UK law.
Petition For Divorce
Petitioning for divorce is the first step in the divorce process. A petition is effectively an application to the court asking that the court disolve the marriage. The spouse filing the petition is called the Petitioner and the other spouse, receiving the petition, is called the Respondent
Issues that should be considered at this stage include:
1) Where to file the petition for divorce
There are certain residence requirements that you need to satisfy before filing a divorce petition in England and Wales. These are set out below. You should bear in mind that the law in Scotland is different and if either party live in Scotland or indeed any other country, then you really should seek professional legal advice before proceeding. Generally the English courts have jurisdiction to grant a divorce where either spouse:
(a) is domiciled in England or Wales when the proceedings are begun, or
(b) is habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun.
There are some other provisions too which we have not set out here, but they are particular to certain situations and if they apply to you then you should consider seeking professional advice before proceeding any further.
However; the majority of people contemplating a divorce will fall within one of the above categories.
Even if you are temporarily working abroad or perhaps assigned abroad in the armed forces or by your company, you will normally still qualify under the provisions listed above. It is sufficient if only one of the parties to the marriage is domiciled in England & Wales (or habitually resident ).
The other spouse can be living elsewhere in the world. Domicile is a legally defined word and does not necessarily mean what it says in the dictionary.
However; most people who hold British nationality are automatically considered to be domiciled in England & Wales irrespective of where in the world they live. It is not easy to change your domicile simply by emigrating to another country.
Therefore the majority of British nationals will be considered to be domiciled in this jurisdiction.
As for choice of court, you no longer have a choice. A special court has been set up where all divorces in England must be filed at Bury St Edmunds.
If a divorce gets complicated it will then be transferred to your local divorce court.
2) What grounds to include in the divorce petition
There is only one ground for divorce in England & Wales. That is that the marriage has irretrievably broken down. However; this ground must be supported by one of five facts. Facts are the reasons supporting the ground why the marriage has irretrievably broken down. One of the following five facts has to be proved in order for the divorce to proceed through the courts:
Fact 1. Adultery
Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex other than the spouse. It must be shown that adultery has been committed and that you, the Petitioner, finds it intolerable to live with your spouse any longer. Bear in mind that this fact cannot be used if you continue to live with your spouse, as husband and wife, for more than six months after the last occasion on which you discovered that adultery had occurred.
It is not necessary to name the adulterous partner with whom the respondent has committed adultery, although this is done in situations where the petitioner wants to claim costs against them.
In citing adultery you need to be as specific as possible about dates and places if these are known. Please bear in mind that you cannot divorce your spouse on the basis of your own adultery. It must be alleged that your spouse was adulterous and not you.
Fact 2. Unreasonable behaviour
Unreasonable behaviour comprises behaviour by the respondent which affects the petitioner in such a way that the petitioner cannot reasonably be expected to live with the respondent any longer. Unreasonable Behaviour is not legally defined. However; it tends to cover most types of abusive or careless behaviour including financial irresponsibility, addictions and even adulterous relationships or sexual misconduct.
The petitioner must set out in the petition examples of the alleged unreasonable behaviour being relied on and usually we suggest that at least 5 or 6 examples of the behaviour are included. Not every example needs to be a serious incident.
A series of trivial events can justify the granting of a divorce. Where dates are known, these should be included and at least one of the incidents needs to have occurred within the six month period immediately preceding your separation or the date of the filing of the petition.
Fact 3. Desertion
Desertion is not often used. It requires that the respondent deserted the petitioner against their wishes for at least 2 years immediately preceding the date of the petition and, that the respondent had no justifiable cause to do so.
Fact 4. Two years separation and both parties consent to a divorce
This is also often called the ‘no fault’ divorce option. Essentially this fact does not seek to lay blame for the breakdown of the marriage on any of the parties. It is often relied on by divorcing couples seeking an amicable split, where they meet the requirements of the provision.
To start with you need to be able to state in the petition that you have been separated for at least 2 years immediately before the date of the petition. Separation does not need to mean that you have been living at different addresses. Separation generally means that you have no common life together.
This includes not sharing meals, not sleeping together and not sharing a common life together, such as washing, cooking or socialising. If you intend to rely on this fact, it is vital that the respondent agrees with the divorce proceeding on this basis. This is the only fact of divorce which requires the respondent’s express consent in writing and, signed, before it can proceed.
If there is any doubt as to whether your spouse will agree this fact, you should seek expert legal advice before incurring any court fees or filing your petition as otherwise it could cost you more to rectify the petition.
Fact 5. Five years separation
This fact applies after the parties to the marriage have been living separately for at least five years. It does not require the consent of the respondent, although the respondent still needs to be aware of the divorce petition and a copy must always be served on the respondent.
The Divorce Process
Once you have decided which court to file your petition in and the fact that you intend to rely upon, you will need to complete the divorce petition form. The court office can usually tell you which forms you need and the cost of starting the action.
The process will take on average anywhere from four to eight months if there are no complications, delays or disputes.The following information must be entered into the divorce petition form:-
- the date of the marriage
- address where you last lived together as a couple
- present addresses and occupations of both parties
- names and birth dates of any children
- details of any previous court proceedings relating to the marriage or property
- the fact being relied upon demonstrating that the marriage has irretrievably broken down
All questions must be answered and the wording used in drafting your petition is crucial. Most delays and problems in divorce petitions occur due to poor drafting or the use of the wrong words.
At the back of the divorce petition is a section called the Prayer. This is what you are asking the court to do for you. Essentially it says that you are asking that the marriage is dissolved. It also allows you to make a number of other requests concerned with children, money and property.
You should also set out in the Prayer whether you want the court to make an Order that the respondent pays the costs of the divorce.
The divorce process is then commenced by the filing at court of,
- the petition for divorce in triplicate
- the original marriage certificate (plus certified English translation if non-English certificate)
- a certificate confirming whether or not the parties have attempted reconciliation
- a cheque for the court fee which is currently £510
Frequently Asked Questions
What are the court fees for Petitioning for a Divorce?
At the time of writing this article the issue fee for a divorce petition is £510.
However; these fees regularly change and you should always check with the court to make sure of the exact current fee. Sending the wrong fee will cause delay in the filing of your divorce petition. If you are on a very low income, you may be able to apply to the court to waive the fees altogether.
Who should petition for the divorce?
Either party to the marriage can petition for a divorce. Although you need to have been married for at least one year before the petition is filed at court.
It does not impact the outcome of the proceedings who starts the divorce process. However; the petitioner has more control over the speed at which the divorce progresses and that can sometime be a material consideration.
What about the financial settlement after Divorce?
This is a separate procedure and will usually require the assistance of a solicitor.
The information set out here relates only to the divorce process and not the financial aspects of the divorce. Settling the financial aspects of a divorce can be amicable or in some circumstances can be a hotly disputed matter.
Either way, it needs to be done formally and legally through the courts. Any amicable arrangements between the parties without the involvement of the courts may well not be binding and can cause serious problems later.
You should consult an expert Family Law solicitor about these issues, even if you are planning on filing your own divorce petition.
What if the Respondent ignores the Petition?
Sadly this can sometimes happen. If it does then you will need to arrange for the petition to be served on the respondent in person by a process server.
This will incur an additional charge. The court must always be satisfied that the respondent has been served with the divorce petition. Failure to serve the respondent will cause delay in the divorce progressing and is a complication.
If complications like this arise you should seek professional assistance – we specialise in complex divorces and can advise you of your personal circumstances.
Can both parties to the marriage have the same solicitor acting for them in their divorce?
No. Divorce is a contentious legal process. A solicitor can only act for and advise one of the parties to the marriage in divorce proceedings.
Can I get my divorce speeded up?
Generally speaking, no! In almost all cases the formal steps must be followed and the courts will rarely allow these to be altered.
However; a good divorce solicitor can always help in making sure that the process is as smooth and fast as possible with minimal delay. If you need a swift divorce, contact us.
Can I withdraw my Divorce Petition?
A divorce petition can not be withdrawn once it is filed.
I married abroad and I do not have my marriage certificate, the court will not accept my Petition without it?
This is a complication that will require the assistance of an expert divorce solicitor.
Should you have any queries about your own personal circumstances, contact us on 020 8401 7352.
The information provided in this article is general information only and it is not intended that you should rely on this information as advice relating to your specific circumstances.