Divorcing or Separating

How to get a divorce*...and where mediation comes in.  

Mediation can be started at any stage of the divorce process.  It isn't a question of 'court or mediation'. Mediation helps sort out the negotiations about children and finances that form part of divorce. In some situations this is best handled at the outset but in others these decisions are left until the very last stages.

* for information about separation scroll to the bottom of the page.

from: Gov.uk 'Get a Divorce':

 The pathway through a divorce (in six stages) with details of timescales and charges:

1. Introduction:

You can get a divorce if you have

  • been married at least a year and
  • the relationship has permanently broken down.
  • the marriage that is legally recognised in the UK
  • and you have a permanent home in England or Wales.

There are 3 main steps to getting divorced:

  1. File a divorce petition - you have to apply to the court for permission to divorce, and show reasons why you want the marriage to end.

  2. Apply for a decree nisi - if your spouse agrees to the petition, you’ll get a document saying there’s no reason you can’t divorce.

  3. Apply for a decree absolute - this legally ends your marriage - you need to wait 6 weeks after you get the decree nisi before you can apply.

You may be able to arrange your own divorce without involving solicitors if you agree on:

  • the reasons for a divorce
  • how you’ll look after any children
  • how you’ll split up money, property and possessions

If you agree on these things beforehand, you won’t have to go to a court hearing, and the divorce paperwork should be fairly straightforward.

Mediation can help work out an agreement with your husband or wife about money, property or children. You may be able to get legal aid to help pay for mediation.

2. Grounds for divorce - you can use one of five reasons (below)

You must show there are good reasons for ending your marriage. You can give one of five grounds for a divorce. The grounds are:

  • Adultery

Your husband or wife had sex with someone else of the opposite sex, and you can no longer bear to live with them. You can’t give adultery as a reason if you lived with your husband or wife for 6 months after you found out about it.

  • Unreasonable behaviour

Your husband or wife behaved so badly that you can no longer bear to live with them.

This could include:

  • physical violence
  • verbal abuse, eg insults or threats
  • drunkenness or drug-taking
  • refusing to pay for housekeeping
  • Desertion

Your husband or wife has left you:

  • without your agreement
  • without a good reason
  • to end your relationship
  • for more than 2 years in the past 2.5 years

You can still claim desertion if you have lived together for up to a total of 6 months in this period.

  • You have lived apart for more than 2 years

You can get a divorce if you’ve lived apart for more than 2 years and both agree to the divorce.

Your husband or wife must agree in writing.

  • You have lived apart for more than 5 years

Living apart for more than 5 years is usually enough to get a divorce, even if your husband or wife disagrees with the divorce.

3. File for divorce (starting the paperwork to get things moving):

You need to fill in a divorce petition form to start a divorce.

You must include your:

  • full name and address
  • husband or wife’s full name and address
  • marriage certificate - the original certificate or a copy from a register office

Include the names and dates of birth of any children (no matter how old they are).

If you name the person your husband or wife was unfaithful with, they will get copies of the paperwork. This is a copy of all the details you put on your form.

Pay the court fee

You will have to pay a £410 court fee to start a divorce by sending in your form to the court.

You may be able to get help with court fees if you’re on benefits or a low income.

Send the forms

Once you have filled in the forms:

  • send 2 copies of the divorce petition form to the court (3 if you named someone your husband or wife had an affair with)
  • keep your own copies

Where to send the forms

Send the forms to your nearest divorce court.  The court will send a copy of the petition to your husband/wife.

(At this point you may wish to think about whether mediation could be of help, if you haven't already done so.)

4. Respond to a divorce petition

If your husband or wife has started divorce proceedings against you, the court will send you a ‘divorce petition’.

You will also get:

  • a notice of proceedings form
  • an acknowledgment of service form

Keep the notice of proceedings form, which tells you the case number and what you should do next.

You need to respond by filling in the acknowledgment of service form.

If you don’t respond within 21 days, your husband or wife can continue with the divorce as if you’ve agreed.

Agree with the divorce

To agree with the divorce petition, fill in and return the acknowledgment of service form to the court within 8 days, and the divorce will go ahead.

Disagree with the divorce

To disagree with the divorce petition fill in the acknowledgment of service form and return it within 8 days. Fill in the part that says you’re defending the divorce.

The court will send copies to your husband or wife.

After you return the form, you have up to 21 days to say why you are defending the divorce. This is called ‘giving an answer’.

To do this, fill in the answer to a divorce petition.

You may have to pay a £245 court fee.

Start your own divorce proceedings

After receiving a divorce petition you may then decide to start your own divorce against your husband or wife - eg if you have evidence of their adultery or unreasonable behaviour. To do this, fill in a divorce petition form.

You may have to pay a £410 court fee.

Court hearing

When a divorce is defended or both sides file divorce petitions, the court will usually hold a hearing to discuss the case.

You and your husband or wife will usually have to attend to try to come to an agreement over the divorce.

Get legal advice if there’s going to be a court hearing. If you haven't yet sorted out your arrangements for finance or the children mediation may be able to help you.

5. Apply for decree nisi

You can apply for a decree nisi if your husband or wife doesn’t defend your divorce petition.

A decree nisi is a document that says that the court doesn’t see any reason why you can’t divorce.

If your husband or wife doesn’t agree to the divorce, you can still apply for a decree nisi. However, you’ll have to go to a hearing at the court to discuss the case, where a judge will decide whether to grant you a decree nisi.

Fill in application form

To get a decree nisi, fill in the application for a decree nisi.

If your husband or wife is defending the case, fill in section B of the form, saying you want a ‘case management hearing’ before the judge.

You must also fill in a statement confirming that what you said in your divorce petition is true.

There are 5 statement forms - use the one that covers the grounds you’ve given for your divorce:

Attach a copy of your husband or wife’s response to the divorce petition.

Getting a decree nisi

If the judge agrees, the court will send you and your husband or wife:

  • a certificate of entitlement to a decree
  • a decree nisi

After 6 weeks you can apply for a ‘decree absolute’ to end the marriage.

What if your application for a decree nisi is rejected by the court?

You may be sent a ‘notice of refusal of judge’s certificate’ form, saying why you can’t divorce.

The form will tell you what to do next. The judge may want more information in writing, or you may have to go to a court hearing.

Get legal advice if there is going to be a court hearing: find a legal adviser.

6. Final stage: apply for a decree absolute

The decree absolute is the legal document that ends your marriage.

You need to wait at least 6 weeks after the date of the decree nisi before you can apply for a decree absolute.

The delay gives you a chance to discuss finances and other issues with your husband or wife before the marriage comes to an end.  If these have not been sorted out mediation can help.

Apply within 12 months of getting the decree nisi - otherwise you will have to explain the delay to the court. (If you haven't sorted out your finance or children issues mediation may be able to help.)

Fill in application form

To apply for a decree absolute, fill in the notice of application for decree nisi to be made absolute form.

From  1 July 2013 there is no fee for the Decree Absolute as it’s now part of the fee for starting the divorce.

If your husband or wife started the divorce

If your husband or wife started the divorce, but they haven’t applied for a decree absolute, you can apply.

You’ll have to wait an extra 3 months, on top of the standard 6-week delay, before you can do this.

To apply, fill in an application notice form.

You’ll have to pay a £155 fee and go to a court hearing with your husband or wife.

Getting the decree absolute

The court will check that:

  • time limits have been met
  • there are no other reasons not to grant the divorce

The court will then send you both a decree absolute.

Once you get the decree absolute, you are divorced, no longer married and free to marry again if you wish.

Keep the decree absolute safe - you will need to show it if you remarry or to prove your marital status.

Separating?

If you are separating you may wish to draw up arrangments for property, finance and the children. Mediation can help you with this.

The mediator will work through your arrangements and can draw up a formal record of your agreement which can be given legal effect by the Court. This is a relatively straightforward process and the paperwork can be drawn up by a solicitor.

Married couples separating:

If you were married and have separated it is important to remember that you are still legally married until Divorce Absolute. There are issues, rights, responsibilities and benefits for legally married couples that may or may not apply to you (eg health insurance cover, an inheritance, access to welfare benefits).  

Please also note that if you subsequently divorce the arrangements made on separation may be revisited.  

Some married couples who have taken the decision to end the marriage see a period of separation as an unnecesary detour on the way to divorce. For others it is a necessary resting point for them to think about the future while living separately.  

Co-habiting couples separating:

If you have taken the decision to separate you may need to make arrangments for finance and property as well as arrangements concerning your children. These arrangements can be discussed in mediation and subsequently drawn up into a legal agreement (a solicitor can draw this up for you) to be given legal effect by the Court.

Whatever your views or the reasons for your separation mediation can help you sort through some of the practical arrangements necessary at this stage, from how to tell the children to financial arrangments.

 

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