What is no fault divorce? In 2020 the Government passed an act enabling either spouse to divorce...
Divorce and separation solicitors
At Birkett Long, our leading team of divorce solicitors, Resolution Accredited Specialists and collaborative lawyers understand that when a relationship breaks down, you need pragmatic expert individual advice and assistance to guide you through the complex legal issues that can arise.
We have the knowledge and experience that you need to ensure that you achieve the best outcome possible and are able to move forwards with your life whilst also ensuring that your situation is dealt with with the utmost sensitivity and respect.
How do I get divorced? The divorce process
Currently, in order to obtain a divorce in England and Wales, it is necessary to establish that the marriage has broken down by proving at least one of 5 facts:
- unreasonable behaviour
- 2 years' separation and consent
- five years' separation
The current divorce process requires a divorce petition to be prepared which sets out the reasons why the marriage has broken down beyond repair. This is then sent to the court together with the marriage certificate and the court fee (currently £550). The court then issues the divorce petition and sends a copy to your spouse (the respondent). Your spouse should then complete the acknowledgement of service indicating whether or not they wish to defend the divorce proceedings.
Assuming that they do not wish to defend the divorce proceedings, once the court has confirmed receipt of the acknowledgement of service, it is then possible to apply for the Decree Nisi.
Once that application has been made, it will then be considered by the court and if satisfied that there are sufficient grounds for divorce, the court will send out a notice confirming the date that the decree nisi and any costs order will be pronounced. Unless any of the proposed orders are opposed, it is not necessary for anyone to attend court. The Decree Nisi is then received from the court shortly after.
Following the pronouncement of the Decree Nisi, it is then necessary to wait at least 6 weeks and 1 day before an application can be made for Decree Absolute in which case, it is usually granted without a need to attend court.
Divorce and your finances
Divorce does have a significant impact upon inheritance and pension rights and it is generally recommended to ensure that financial issues are resolved prior to making an application for Decree Absolute.
If you do not make an application for Decree Absolute, then your spouse can make their own application after a further 3 months have passed and the court will list a hearing to consider whether there is good reason for the Decree Absolute to be delayed or whether it should now be granted.
In 2020, it was decided that this would change and the law would be amended so that it would no longer be necessary to prove the grounds for divorce and instead there would be a no fault divorce. This is not due to come into effect until 6 April 2022.
What happens at an appointment with a divorce solicitor?
We understand booking to see a divorce lawyer can be scary. Click here to read an article about what happens at the first meeting with a divorce lawyer - it gives an overview of the information you will need to bring with you, how the meeting will work and what happens next.
If your marriage has broken down beyond repair and you are looking to obtain a divorce, but want to keep things friendly, take a look at 10 top tips on getting divorced amicably from a member of our family law team. There are lots of helpful articles about family and relationships, divorce and separation, children's issues and other topics on our blog.
Are there alternatives to divorce?
Whilst divorce has the effect of bringing the marriage to an end, some people do not feel ready to take that step or have moral or religious objections to divorce. In that situation, a couple might agree to simply separate but remain legally married or to seek a judicial separation.
If a decision is made to simply separate, no formal documentation acknowledging this is required, however, it is strongly recommended that the financial issues arising as a result of the separation are agreed and set out in a formal separation agreement.
What is judicial separation?
Judicial separation, by comparison with divorce, ends the legal obligation to cohabit but does not terminate the marriage itself. It is available on exactly the same grounds as divorce and is largely the same process, albeit there is only one decree and not two.
The difference between a simple separation and judicial separation is that where judicial separation has been granted, the court can make financial orders dealing with the financial aspect of separation whether by agreement in a consent order or following determination by a judge.
A nullity petition
A nullity petition is another option where the marriage is considered to be void or voidable. A marriage would be considered void if the couple were too closely related, under 16 at the time of the marriage, had disregarded certain requirements for marriage or where either party at the time of the marriage was already lawfully married or in a civil partnership.
A marriage may be voidable (subject to a number of restrictions dealing with timing and knowledge) where:
- the marriage has not been consummated owing to incapacity or wilful refusal
- there was not valid consent to the marriage
- at the time of the marriage the respondent was suffering with a sexually transmitted disease
- at the time of the marriage the respondent was pregnant by some person other than the spouse
- that an interim gender recognition certificate has been issued to either party since the marriage
- the respondent is a person whose gender at the time of the marriage had become acquired under the gender recognition act 2004
Same Sex Marriage and Civil Partnership
If you are in a same sex marriage or civil partnership which has broken down, then you may wish to obtain a divorce (if married) or dissolution (if in a civil partnership) in order to bring the marriage or civil partnership to an end.
The process is the same as if you were in a heterosexual marriage. It is currently still necessary to prove that the civil partnership has broken down, the grounds include;
- 2 years' separation and consent
- 5 years' separation
The main difference with civil partnership dissolution is that adultery is not an option, and whilst adultery remains an option for divorce for a same sex marriage, adultery refers to sexual intercourse between people of the opposite sex and so is not available if your spouse has an affair with someone of the same sex.
Should you not wish to obtain a divorce or dissolution then alternatives include:
- nullity where the civil partnership is void or voidable
- separation order which is the civil partnership equivalent of judicial separation.
Any of these options also allow the court to address the financial issues arising as a result of the separation, whether by consent or following determination by a judge.
It also remains a possibility for you both to agree to separate but remain legally married or in a civil partnership. If a decision is made to simply separate, no formal documentation acknowledging this is required, however, it is strongly recommended that the financial issues arising as a result of the separation are agreed and set out in a formal separation agreement.
If you or your spouse have connections with other countries outside of England and Wales and are contemplating divorce or separation, it is extremely important that you seek urgent legal advice in relation to your options.
In some cases it is possible that divorce proceedings may be issued in England and Wales or in another country and this can have a significant impact on the outcome of the financial issues. England and Wales are generally considered to have the most discretion and therefore offer the most generous approach to financial provision on divorce.
I am not married or in a civil partnership but want to separate
The current laws of England and Wales do not offer the same rights or recognition to couples who are cohabiting, rather than being married or in a civil partnership. There is no such thing as a common law spouse, and so if you decide to separate, no formal documentation is required to give effect to this.
However, separation is still likely to raise issues with regards to how financial issues should be addressed and arrangements for any children. Bespoke legal advice from our specialist family solicitors will help ensure the best possible outcome for you and ensure that the outcome is set out within either a separation agreement or court order, as appropriate.
Contact a divorce lawyer
To find out more about the divorce process, or to talk about where to start, contact our divorce and separation solicitors in Basildon, Colchester or Chelmsford today for a no obligation, free chat on the phone.
- Lisa Collins
- Partner, Head of Divorce & Family South Essex
- 01206 711334
- Francesca Cozens
- Associate Solicitor
- Shelley Cumbers
- Farrah Harvey-Nawaz
- Philip Hoddell
- Partner, Head of Divorce Colchester, Chair of Strategic Board
- 01206 711348
- Karen Johnson
- Partner, Associate Solicitor
- Muntech Kaur
- Associate Solicitor
- Melanie Loxley
- Alexandra Zahariadi
- Trainee Solicitor
- Debbie Butterfield
- Executive Legal Support Assistant
- Sue Catterwell
- Executive Legal Support Assistant
- 01245 453845
- Marina Iskra
- Legal Support Assistant