Relationship breakdown

Separation and steps to divorce

"Sadly, every year around 150,000 marriages end in divorce." Resolution

Whether you are married or living with a partner, each of us in the emeryjohnson family law team is aware of the personal turmoil you may experience at the breakdown of your relationship.

Even if you've known for some time that things aren't working out, the legal process of ending a relationship can have a major impact both -emotionally and financially - on all members of the family.

On top of this, you will have a host of practical issues to sort out; from looking after the children to who lives where and who gets what to managing your finances, telling friends and family, and your personal well being.

Your Emery Johnson divorce solicitor will aim to make the process as painless as possible while providing the expert legal advice which will assist you in moving your life forward on a positive footing.

Separation

For a variety of reasons, some couples decide not to divorce. By simply living apart they are deemed to be separated by the Inland Revenue and by the Benefits Agency.

However, you should consider this option very carefully with the advice of your emeryjohnson solicitor who can draw up a Deed of Separation to record any agreement regarding financial matters, children and plans to divorce or not. This could be relied upon if you do decide to divorce at a later date. A court would prefer not to overturn such an agreement provided that you had both taken legal advice, been honest about your circumstances at the time and there has not been any change in your circumstances since.

Judicial separation

If your religious beliefs do not allow you to divorce, you might consider Judicial Separation. This follows the same court procedure as divorce and you will have no legal duty to continue to live together but you will not be able to remarry.

Steps to divorce

You must have been married for at least one year before you can apply to the court in England and Wales for your marriage to be dissolved. Additionally one of you must have been a resident in England for the 12 months immediately before your application.

You will need a copy of your marriage certificate and will be required to pay the court fee of £300 when you file the Petition (your application to the court).

At this point, you will become the Petitioner, while your spouse will be known as the Respondent. In order to obtain a divorce, you will need to demonstrate that your marriage has irretrievably broken down, by establishing the existence of one of the following:

   (a) Your spouse has committed adultery* and you find it intolerable to continue to live with him/her.
   (b) Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.
   (c) Your spouse has deserted you for a continuous period of two years or more.
   (d) You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
   (e) You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.

* It is no longer compulsory to name the third person in a petition based on adultery. Doing so may offer temporary satisfaction but may lead to additional resentment and your spouse being less willing to cooperate on other issues. It also means that the third person will become a party to the proceedings.

Your emeryjohnson solicitor will try to establish whether or not there is likely to be any opposition to the petition or even send a draft to your spouses solicitor to reach an agreement on the particulars to minimise objections later.

The court will send your spouse the checked and processed Petition, Statement of Arrangements and an Acknowledgement of Service Form which he or she should return to the court within seven days. If the Respondent wants to defend the divorce then they must file an Answer within 28 days of receiving the Petition. In practice, very few Respondents do defend the divorce.

If your spouse does not wish to defend the divorce, your Emery Johnson solicitor will prepare an Affidavit (sworn statement) confirming the facts of the Petition and send this with a Request for Directions to the court. This is the application for the Decree Nisi and is the first stage in obtaining a divorce.

If the judge is satisfied that the grounds for divorce are proven and she has no queries, a date will be fixed for the Decree Nisi to be pronounced in court signifying that the ground for the divorce are proven and due process of law has taken place.

Neither person has to attend the court unless your spouse contests the divorce or arrangements for any children have not been agreed.

If you do have to attend court, proceedings are usually held in private. The press are able to publish that a decree nisi has been pronounced together with your names and the basis upon which the divorce was granted but, not the actual details themselves.

Six weeks and one day after the Decree Nisi, you may apply to the court for Decree Absolute. There is no hearing and once granted, the divorce is concluded and your marriage is dissolved.

If you do not apply for the Decree absolute within three months, your spouse may do so. In this case there would be a brief hearing but you could oppose the application if, for example, when there are problems with a pension.

The process described above can take anything from four to six months but some cases, particularly those involving finance, can drag on for considerably longer.

The assistance of your experienced emeryjohnson solicitor can help to reduce your stress during this period, when disputes about children and finances can cause frustration, anxiety and distress.