I want to get divorced, what is the process?
The first thing that a petitioner will need to do is locate the marriage certificate or obtain an official copy from the office for Registration of Births Deaths and Marriages covering the area where the marriage took place (or relevant office if the marriage took place abroad) as information from this certificate needs to be given in the divorce petition itself. If the marriage took place abroad and the certificate is not in English and in the language of the country where the marriage took place then you will have to obtain a certified translation.
This answer will deal with an undefended divorce where the petitioner is represented by solicitors.
The petitioner will then need to decide on which fact of divorce to apply - the solicitors will discuss the options with a client. If it is decided to issue on the basis of adultery, the solicitors will write to the spouse with a Form of Admission to see if he/she will admit to the adultery. If it is intended that two years’ separation with consent will be used, then the spouse will be sent a Form of Consent. If the spouse fails to respond or makes it clear they will not admit to adultery / give consent, the petition can be drafted on the basis of behaviour.
Once the petition has been drafted, the solicitors will go through the petition with the client to make sure they are happy with it and then ask them to sign. A copy of the petition will be sent to the spouse under the protocol used by family solicitors for his/her advance perusal and the spouse will be given 14 days in which to raise any objections or corrections. It is at this stage that the spouse can seek legal advice and negotiations can commence in relation to who is paying the costs, and the solicitors for the spouse can request that it is their details that appear on the petition as the place where documents should be sent by the Court ie ‘address for service’.
The petition is then sent to Court for issuing. A sealed copy is sent to the solicitors for the person applying for the divorce who is now known as ‘the petitioner’ together with a Notice of Proceedings which confirms the date that the spouse, who is now referred to as ‘the respondent’, was sent a copy of the petition.
The respondent or his/her solicitors will be served by post with a copy of the sealed divorce petition and an Acknowledgement of Service form. This is the only form that the respondent needs to return to the Court insofar as ending the marriage is concerned. If the respondent is admitting to adultery or does not have solicitors acting for them then he/she should sign the form. Otherwise, the solicitors will sign the Acknowledgement after going through the petition with the respondent and completing the Acknowledgement with them. The Acknowledgement is then sent to the Court and a courtesy copy provided to the solicitors for the petitioner.
If the respondent fails to return the Acknowledgement of Service then the petitioner will have to consider personal service by a court bailiff or a process server.
Once the solicitors for the petitioner have received either the copy of the Acknowledgement of Service from the Court, or the Statement of Service of the process server/court bailiff, then the petitioner can apply for the first decree of divorce which is known as decree nisi. This application is made up of two documents, the very short application form itself and a Statement in Support of the divorce petition. It is on the Statement in Support that the petitioner can tell the Court if any additions or amendments are needed to the petition, such as changes of address, correction to dates etc. There is a different Statement in Support for each fact of divorce and it is therefore essential that the correct one is used as otherwise the documents will be rejected and the process will be delayed.
If the respondent has signed the Acknowledgement then a copy of this will be attached to the Statement in Support as an ‘exhibit’ and the petitioner will need to complete the paragraph asking them to confirm that the Acknowledgement has been seen and the signature of the respondent has been identified.
If the respondent has been served by the court bailiff or process server but still fails to send back the Acknowledgement, then the petitioner can exhibit a copy of the Statement of Service to the Statement in Support instead.
If service has been impossible and an application for deemed service successfully made, the petitioner can attach a copy of the order from the Court confirming that it is satisfied that the respondent has had the papers – ‘service on the respondent is deemed to have taken place on or before [date]’ – to the Statement in Support.
The Statement must be signed by the petitioner at the Statement of Truth section which means the petitioner confirms that the information provided is true to the best of their knowledge and belief.
The Application for Decree Nisi, Statement in Support and any supporting documents will then be sent to the Court and it is at this stage a Judge will consider the divorce papers in detail and, if everything is in order, the Court will send out a Certificate of Entitlement confirming that the Court is satisfied that the petitioner is entitled to a divorce based on the information set out in the petition and setting down the date for when decree nisi will be pronounced. If there has been an application for costs, the Certificate will also confirm that the issue of costs will be considered on the day that decree nisi will be pronounced.
If the Judge is not entirely satisfied, the solicitors for the petitioner will be sent a Notice of Refusal of Registrar’s Certificate which will set out what needs to be done to resolve matters.
Unless the respondent has given notice of attending to object to a costs order, neither the parties nor any legal representative will need to attend Court when decree nisi is pronounced. The list of cases in respect of which decrees nisi are to be made will be read out ‘pronounced’ – sometimes to whoever is sitting in the waiting area!
The Court will then send the sealed decree nisi and any costs orders out to the parties or their representatives. It will be six weeks and one day after the date of decree nisi that the petitioner can apply for the final decree of divorce, known as decree absolute. This allows the parties to have a ‘cooling off’ period so they can be certain that legally ending the marriage is what they want. Consideration will also be given at this stage as to whether the petitioner’s entitlement to marital assets will be affected if the marriage is legally ended and if so decree absolute will be delayed.
Once application for decree absolute has been made, the matter does not need to be referred back to a Judge (unless it is over a year between the date of decree nisi and the date when decree absolute was pronounced – this will be dealt with separately) and the Court staff will process the decree absolute and send a sealed copy out to the parties or their representatives.
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