Divorce, Separation & Splitting Up

Divorce is the process that legally terminates a marriage. What it isn’t, is the process that determines who gets the house (see finances).

Divorce is largely administrative, involving submitting various pieces of paperwork to a court. Once you have provided all necessary paperwork, the final decree of divorce (decree absolute) will been pronounced. After that, your marriage is legally dissolved and you can formally call your spouse an ex-husband or ex-wife. Divorce changes your legal status, and may well impact your personal affairs including tax matters, entitlement to benefits and testamentary provision.

Divorce and separation

Divorce is the process that legally ends a marriage. Dividing your assets is a separate process, although this usually runs alongside the different stages of divorce.

Reaching a settlement involves engaging in discussions with your soon-to-be-former spouse. These negotiations normally concern your home, your money, and any other possessions that don’t clearly belong to one spouse or the other. Arrangements for children will also be discussed: it is obviously important to decide quickly which parent they will live with, how much time they will spend with the other parent, and the level of child support the second parent will pay.

The divorce process

These days divorce is mostly an administrative affair. It requires the submission of a series of forms to one of a number of dedicated divorce processing centres around the country.

The first form is the divorce application. This should be completed and submitted by one spouse. Note that you can only apply for divorce once you have been married for a year. You will need to submit a copy of your marriage certificate, and if you changed your surname when you got married, proof that you did so. Under current legislation, you will also need to cite a specific reason for the divorce (see below for more on this).

A fee of £593 is payable to the court, although concessions are available for those on a low income.

You will then receive an acknowledgement and case number. Many divorcing couples choose to conduct their financial negotiations at this point, while others complete this process before the initial application. It is not obligatory, but if you wish to convert your agreements into a formal, legally binding court order – called a ‘consent order’ – you will need to do so before you reach the decree absolute.

Decree nisi

The next stage is an application for the penultimate stage, the ‘decree nisi’. You will need to complete a statement form which corresponds to the reason you cited in the divorce application, confirming that facts cited in the application were true. You will also need to include a copy of your husband or wife’s response to the application.

In most cases, you will receive a certificate confirming the decree nisi a few weeks later. You will still be legally married at this point: a decree nisi is simply a legal declaration that your divorce may proceed to the final stage.

Decree absolute

Six weeks and one day (43 days) after your decree nisi has been issued you will then be able to apply for the final stage in the divorce process: the decree absolute. This requires the submission of a further form. Once your decree absolute has been issued, the marriage will officially be at an end and you will have an ex-husband or ex-wife. If you wait longer than 12 months after your decree nisi before applying for a decree absolute, you may be asked for an explanation by the court.

It is important to keep your copy of the decree absolute as you will need to show this if you remarry in the future.

Divorce is a change in legal status with a number of implications. It will affect your personal affairs in various ways, including your tax liabilities, your entitlement to benefits and right to inherit.

Contact us now for a free divorce consultation.

Grounds for divorce

Under current legislation, it is necessary to cite one of five reasons or ‘facts’ when applying for divorce. These are:

  • Unreasonable behaviour – more specifically, that “your husband or wife has behaved in such a way that you cannot reasonably be expected to live with them”.
  • Adultery.
  • Desertion.
  • Two years’ separation ‘with consent’ – meaning you have lived apart for at least two years by mutual agreement.
  • Five years separation ‘without consent’ – if you have lived apart from your spouse for five years, you are entitled to divorce them even if they do not agree.

However, the need to cite one of these reasons has been a source of controversy for some time because at least three require formally blaming your spouse for the divorce. In April 2022 the law in England and Wales will finally change: at that point it will no longer be necessary to cite any reason when applying for a divorce – all that will be required is a declaration that the marriage has broken down, and this can even be made jointly.

Once this declaration has been made, the court will issue a ‘conditional order of divorce’. They will need to wait 20 weeks (a little over four and a half months) before the divorce is finalised. This is intended to be a “period of reflection”, providing each spouse with time to reconsider and be sure they really wish to go ahead with the divorce. At the end of that period, if they still wish to proceed, they will then be able to apply for a ‘final order of divorce’, bringing the marriage to a close.

This new approach is often referred to as ‘no fault divorce’.

Contact us now for a free divorce consultation.

Separation

Ending a cohabiting relationship is a much simpler process than divorce. In most cases there will be no legal formalities to attend to because there was no legal connection. Contrary to persistent popular myth, there is no such thing as a ‘common law’ marriage in English law and cohabitees do not usually have any legal right to property or financial support following the end of a relationship. Their former partner may voluntarily provide support but there is no legal obligation to do so.

Some individuals can be left in real difficulty when a long-running cohabiting relationship comes to an end or their former partner passes away. It is better to protect your interests before any such occurrence. A family solicitor will be able to advise and explain the options open to you.

Contact us now for a free consultation on the legal options open to cohabitees.

Are there any alternatives to divorce?

If divorce is not an option for you maybe because of, say, religious beliefs, it is possible to obtain a Decree of Judicial Separation or Nullity without having to prove that your marriage has irretrievably broken down. For specialist advice on the process and the effects of Nullity and Judicial Separation speak to a specialist divorce and family lawyer. Remember an alternative to divorce is also not splitting up. You could stay together and try to work on your issues. Speak to a relationship counsellor in confidence.

Experts

Are my rights dependent on my reasons for divorce?

Generally, no. Divorce doesn’t tend to have any impact on the division of financial assets. An adulterer will not have to give up a greater share of the Family Home because they’ve committed adultery. An exception to the general rule needs to be considered if you’re divorcing on the basis of 5 year separation in which case you should seek advice.

Experts

Can I choose my own solicitor or lawyer at a family law firm?

Sometimes. This will largely depend on the firm’s caseload and internal structure. Family lawyers usually co-work cases in small teams. A solicitor may handle your matter on a day-to-day basis together with assistants, support staff and oversight from a partner or director. You would pay a blended rate for the time each fee earner’s spends progressing your case. If your matter is not particularly complex then there may be no need for you to pay the rates of a partner or director. If you are undergoing and international divorce or have complex financial affairs you may need to speak to someone with more experience which will naturally come at a greater cost to you. If you are offered a solicitor who is cheaper than your solicitor of choice, then it’s always worth considering it as you’ll save money and likely still have some input from your solicitor of choice. Family law teams chat with each other regularly.

Experts

Can I remarry after my divorce?

Yes. Once you have Decree Absolute your marriage is terminated and you can remarry. Do pay attention to any financial order you have agreed with your husband or wife / any financial orders that a court has made, as certain types of financial provision may come to an end on your remarriage.

Experts