What is separation?
To be separated, all you have to do is live apart. There are many couples who decide not to divorce but you should carefully consider your options with a solicitor. It is commonplace to make a Deed of Separation to record any agreement regarding financial matters, children and plans to divorce or not. Care needs to be taken before signing any document as this could be relied upon if a divorce takes place at a later date. If you have both received legal advice, the court would prefer not to overturn the agreement at a later date provided that you had both been honest and there has not been any change in your circumstances.
When you are living apart, you are classed as separated by the Inland Revenue and by the Benefits Agency.
Is there an alternative to divorce?
Yes, this is a Judicial Separation. This is not so common but could be considered when there are religious objections to divorce. It follows the same court procedure as divorce and the court retains the power to settle financial disputes with the exception of pension splitting. The court can also settle any disputes regarding children. The main difference is that you no longer have any legal duty to live together but you cannot remarry. This should be carefully considered with your solicitor.
What do I have to do to get a divorce?
Grounds for divorce
You have to show the court that the marriage has irretrievably broken down. This means that either one or both of you feel that you cannot stay married to each other. Either of you may apply to the court in England and Wales for the marriage to be dissolved as long as you have been married for one year at least and that one of you has been a resident here for the year before your application is made. (If either of you is not usually domiciled in England or Wales, we can refer you to ones with international experience.) The application to the court is called a Petition and the spouse who files (sends) the Petition is called the Petitioner. The other spouse is then called the Respondent. You need to prove one of the five following facts:
Your husband or wife has committed adultery and you find it intolerable to live with him or her. In most cases you prove adultery by your husband or wife admitting it. If not, you will need to speak to your solicitor. (If you carry on living with your husband or wife for more than six months after you find out about the adultery, you will generally not be able to use this as grounds for divorce unless the adultery is continuing.)
b) Unreasonable behaviour
Your husband or wife has behaved in such a way that you cannot reasonably be expected to live with him or her. This covers all sorts of bad behaviour. You need to think about the main things that have made your husband or wife difficult to live with. These are summed up in the petition (the application for divorce) in a few short paragraphs. It is best not to get emotional and vindictive as this could hamper future negotiations. A good solicitor would aim to send a draft copy to your spouse's solicitor for agreement.
As with adultery, you cannot rely on single events that took place more than six months before you file your petition, if you have lived together since then unless previous incidents have occurred.
Your husband or wife has deserted you for a period of more than two years. Desertion means leaving your husband or wife without his or her agreement and without good reason.
d) Two years' separation
You have lived separately for more than two years and your husband or wife consents to the divorce. This is often called a 'no-fault' divorce. You can have had periods of living together as long as they do not add up to more than six months and you have been apart for least two years altogether.
e) Five years' separation
You have lived separately for more than five years. Your husband or wife does not need to agree to this. They cannot defend this Petition but they can ask the court not to grant the final decree because of a major financial or other type of hardship.
The facts described in a and b are the most used (over 70 per cent of cases) because with all the others you need to have lived apart for more than two years. Only the two year separation in paragraph d needs your husband or wife's formal consent on the divorce papers. In practice both you and your husband or wife will need to agree that the marriage has broken down. If you file a Petition based on your husband or wife's behaviour or adultery, it could be beneficial in the long run if you can both agree on the contents and therefore make sure that the petition will not be defended. A draft petition could be sent to the other solicitor for agreement. But in some circumstances, this is not possible and you should as ever be guided by your solicitor.
How long will it take?
This varies from court to court and from case to case, depending on the complexity of the case. As we have said, at best, it can take five to eight months but cases can drag on for considerable lengths of time. The assistance of an experienced family lawyer can help to reduce this stressful period of time when disputes about finances and children have to be considered together with the legal process. These are dealt with in our next section, Financial.
If there is a child of the marriage, or if there is a child who has been treated as such (child of the family), then a Statement of Arrangements about the child has to be filed as well. You should fill in details about the child's school, the other parent and contact arrangements. This applies to any child under 16 and those over 16 who are in full-time education. Details should be checked with your solicitor.
All these documents have to be in a particular format and have to state specific things. It is therefore prudent to have the help of a solicitor although the courts can provide you with blank forms. The Petition has to set out details of one of the five facts that is being proven. The original marriage certificate has to be sent to the court at the same time with the court fee which is presently £340 and £45 for the Decree Absolute.
Then the court checks and processes the documents.
Then they send them in the post to the other party. This could take approximately four weeks. The other person will get the Petition, the Statement of Arrangements and a document in question and answer format, which has to be sent back to the court, called an Acknowledgement of Service Form. This should be done promptly.
Naming in adultery
You can name the other person with whom the adultery has taken place, the Co-respondent, but this is probably best avoided as emotions will already be running high.
You may feel better by naming in the short term but in the long run it could add to your spouse's grievances and perhaps make him unwilling to co-operate. It is satisfactory for the court to have this fact alone without the name. The Respondent should return the Acknowledgement of Service Form to the court within seven days of receiving the petition.
If the Respondent states that he or she wants to defend the divorce If this happens, then a document called an Answer has to be filed within 28 days of receiving the Petition. During this emotional time, the way you have described the reasons for the breakdown of the marriage could lead to more resentment, especially if you were both deciding to separate and your partner may want these to be rephrased. Again, finding the middle ground and avoiding extra confrontation could be better for all concerned as well as reducing the costs. As always, if you feel you want to defend the divorce, be guided by your solicitor. Sometimes this can just add to the costs. Having a specialist family law solicitor could save you time and money as well as stress.
The next step
When the court receives the Acknowledgement, it takes about three weeks to process this. Then you are sent a copy of this together with a copy of part IV the statement of arrangements for any child. You should also receive two blank copies of an Affidavit and an Application for directions.
Complete the Affidavit
You must complete this, preferably with the help of your solicitor who will then arrange for it to be sworn i.e. - that the contents of the Affidavit are true. Any other documents would also be sworn at this stage. You will also need to have your copy of the Acknowledgement. You could also take these to a local court and there would be no charge but the clerks is unable to give legal advice. When this is done and the Application for directions is signed and dated, you send this with the Affidavit to the court office. There is not a fee at this stage.
A judge will decide usually within four weeks of receiving the correct documents whether or not to grant the first decree of divorce which is called a Decree Nisi.
If the district judge is satisfied that the grounds for divorce are proven and he does not have any queries, a date for the Decree Nisi would then be fixed. The courts review the arrangements for the children. If they are agreed, it is unlikely that the court will interfere. But if the documents sent to the court show that the arrangements are not agreed for the children, then the Petitioner and the Respondent may be asked to attend court. For further details see the article on children In this section.
The Decree Nisi will be pronounced by the court on the date fixed. Neither person has to attend the court. The Decree Nisi is the first of two decrees of divorce. It signifies that the ground for the divorce is proven and that the due process of law has taken place.
Six weeks and one day later (do not apply before), the Petitioner may apply for the second and final decree of divorce; this is called the Decree Absolute. When that is granted, the divorce has taken place. There is no hearing. The application to the court is made on a standard form with a court fee which is presently £40. On receiving the Decree Absolute, you are legally divorced and free to marry again if you so wish.
If the Petitioner does not apply for a Decree Absolute
This means that the Respondent can do so three months later. There has to be a brief hearing before a judge but the petitioner could oppose it, for example, when there are problems with a pension.
Read on in this section for information about children, short term planning, mediation, how to avoid the obstacles leading to settlement and beyond. We also introduce the new Collaborative law process. Please also read our next main section, Financial. Remember to check back in Emotions, Children/Parents and Health sections.
What if we can't agree about money and/or children?
If after discussions with your solicitor and perhaps mediation or the Collaborative process, you are unable to agree, then you may be advised to proceed to court.
The court process - what happens in the divorce courts
This is described in our article Courts and documents.
Please also see Your letters page answers provided by Wright Hassall's Lisa-Marie Darby.
Legal glossary - legal words explained
You may encounter some of the following terms and these are listed in alphabetical order for you. They may seem quite strange to you at the beginning of this process but you will get used to them. Many are quite formal legal terms.
absent parent This has caused some ill feeling. This term was used in the Child Support Act 1991 to refer to the parent not living in the same household as the child. Non-resident parent is now usually used.
This is an old term which has been replaced by the term contact.
acknowledgement of service form Form sent by the court to the respondent (and co-respondent if any) with the petition, with questions about his or her intentions and wishes in response to the petition. It has to be returned to the court thus establishing service of the petition.
adultery Sexual intercourse while you are married, at any time before a decree absolute, with someone of the opposite sex who is not your husband or wife.
affidavit A formal statement, sworn on oath to be true by the person making it. (These can often cause trouble as facts can sometimes get distorted or exaggerated. Solicitors and judges have probably read similar statements before. Try not to get too angry if you are on the receiving end and be guided by your solicitor.)
ancillary relief A general term for the possible financial orders that a court can make in addition to a petition for divorce or judicial separation.
answer The formal defence to a divorce petition. Strict time rules apply here.
application A document giving broad details of the order sought from the court.
CAFCASS The Children And Family Court Advisory And Support Services for England and Wales. You will meet one of these officers if you apply to the court for any order affecting your child, for example contact or residence.
care and attention If your case becomes more complex or has to be dealt with urgently, this is a term to describe the extra legal charge imposed by your solicitor.
chambers This is the name for the offices of barristers.
in chambers This term is when the district judge or judge considers an application in private. This is less formal than open court.
charge A charge on a property is like an additional mortgage. It gives the holder of the charge security as he has to be paid out of the proceeds of the eventual sale of the house. In family law, it is usually levied when there is a legal funding fee to be paid back and there isn't enough capital in the settlement to do this.
clean break A one-off order that deals with all the finances between a husband and wife. There can be no subsequent claim for any maintenance even if circumstances change.
(There can be no clean-break regarding children, this is just between spouses.)
conciliation This is a type of mediation usually in court which helps couples to sort out arrangements for children rather than financial issues. If it is outside of the court process,
it is usually known as mediation. See the article on mediation In this section.
conflict of interests Solicitors use this term when, for example, they are unable to represent you due to other professional relationships.
consent order An order made by a court in terms agreed by both husband and wife.
contact (formerly referred to as access) The arrangement for the child to visit or stay with the parent who longer lives with the child. Indirect contact means the exchange of letters or phone calls. Contact orders can also be made in favour of others, for example grandparents.
co-respondent The person with whom the respondent has committed adultery. It is no longer legally required for this person to be named and this can sometimes cause less acrimony.
counsel Another name for a barrister, e.g., a meeting with counsel.
court welfare officer The previous name for the person used by the court to prepare a report about the best interests of a child when there is a dispute. The new term is a CAFCASS reporter.
cross-decrees When a decree is given to the petitioner on the basis of the petition and to the respondent on the basis of the answer.
cross-petition This is when the respondent argues different grounds for the divorce from those of the petitioner.
custody No longer used. See residence.
decree nisi A provisional order showing that the court is satisfied that the grounds for divorce have been established.
decree absolute This is the final court order bringing the marriage to an end.
directions for trial A time in the divorce proceedings when the judge considers the petition and affidavit and asks for further information to be provided if needed in his opinion before a decree nisi is pronounced. This is also a stage in the children's applications when the district judge considers the statement of arrangements and asks for further evidence he may need before making any order.
disclosure The process of providing full financial details, including income, assets and liabilities. This is either done voluntarily, or the court can order it. This must be full and frank.
district judge A county court judge responsible for dealing with most aspects of divorce including the financial matters.
domicile The domicile of origin is normally where you are born unless a new domicile of choice is adopted by taking up permanent residence in another country.
Duxbury calculation A tool used in a clean break situation, a formula to calculate the lump sum necessary based on the amount of maintenance payable and life expectancy.
equity Refers to the net value of a property after mortgages or other charges are paid.
exhibit A document shown in court which is usually sworn with an affidavit.
ex parte Usually an urgent application to the court which is made without prior notification to the other side.
Family Proceedings Court A division of the Magistrates Court where family law matters are dealt with.
filing When documents are left with the court for sealing and service.
Financial Dispute Resolution Appointment Under present financial procedures, this is the second court appointment when the judge considers all offers made including those on a without prejudice basis.
First Appointment The first court meeting when the judge considers what other information is needed to determine financial matters.
injunction A court order which tells someone to refrain from doing something. Penalties for not abiding by the order can include imprisonment in some cases.
intestacy A term used when someone dies without making a will.
judicial separation A court order ending in a decree of judicial separation which enables the court to make orders about finances and other orders similar to divorce cases.
legal aid The old term for government help with legal fees based on financial eligibility and the merits of the case. Now replaced by Community legal Service funding.
Maintenance Application Form and Maintenance Enquiry Form These are standard forms sent out to both parents by the CSA (Child Support Agency).
maintenance Money one spouse pays to the other for ongoing financial support on a regular basis, either just for the spouse or for children too.
maintenance pending suit If the divorce may take some time, temporary maintenance can be requested pending the end of the divorce.
matrimonial home (usually referred to as the ex matrimonial home) A property where the
married couple live together. It can either be rented or owned.
matrimonial home rights These are the rights of occupation of both spouses to live in the family home until the decree absolute. If there is domestic abuse or violence (refer to our articles in Child Aid and this section for information), you should seek immediate advice from your solicitor or the police as the courts have powers to alter this arrangement in some cases.
MacKenzie friend this is a lay helper who can go with you into court, with the court's permission, but he does not have the right to address the court directly or examine a witness.
mediation (see our articles in Child Aid and this section on mediation) This is a method of coming to agreements about children and/or finances with the help of a trained mediator/s.
minutes of order This is when draft terms of agreement go before the court with a request that a consent order be made in the same terms.
mortgagee This is usually a bank or building society, but it can be anyone, that lends you money to buy a property on the security of the property.
mortgagor This is the borrower who obtains the mortgage.
nominal order This is an order for maintenance when it is not needed or cannot be paid under
present circumstances. This can cause some confusion but the order is made, say for 50 pence a year, so that if circumstances change, the court can review this order which remains on file.
non-molestation This order is to prohibit someone assaulting, harassing or interfering with another person.
non-resident parent The CSA now uses this term instead of absent parent, meaning the parent living away from the child.
occupation order An order which regulates occupation rights to the matrimonial home. A spouse can be excluded from the home or from a certain part of it.
parental responsibility This means the rights and responsibilities that mothers and married fathers have to their children. This continues during and after the divorce process.
( Non-married fathers can acquire this through marriage to the child's mother, through the courts or through a Parental Responsibility agreement, as can guardians and others.)
parent with care A CSA term to denote the parent who has the child at home and provides day to day care.
penal notice This is a court warning usually contained in a court order, notifying the
recipient that a breach of the order will result in committal to prison.
pending suit This means while the divorce is in process and before the decree absolute.
periodical payments Another term for maintenance.
petition This is the document requesting a divorce or a judicial separation.
petitioner The person who starts the divorce proceedings by filing the petition(leaving the documents at court).
pleadings Documents or formal statements summarising the issues of the case.
prayer The part of the petition or answer which asks the court to make orders in favour of the petitioner or respondent.
prohibited steps order This is a court order used to prohibit something being done to a child, being taken out of the country for example.
property adjustment order An order that a spouse should transfer a property to the other.
qualifying child A CSA term meaning a child under 17 or under 19 if in full-time education.
recovered or preserved Money or property gained or retained during legal proceedings.
relevant child A child of the marriage under 16 at the time of the decree nisi or between 16 and 18 if in full-time education or training for a trade. A disabled and dependant child of any age is considered.
reply A document filed by the petitioner in response to to an answer.
request for directions An application to the court for a decree nisi.
reserved costs This is when a decision about costs will be made later during proceedings.
residence order A court order made to say with whom the child will live.
respondent The spouse who receives the petition for divorce or judicial separation
sealing by the court The court stamps a document filed at the court office or stamps an order or decree when issued.
secured provision When an asset which provides income is put under the jurisdiction of trustees and used to provide maintenance.
separation agreement A document setting out the terms agreed usually before divorce proceedings. A solicitor should be consulted before signing.
service The process by which court documents are formally sent to one spouse.
special procedure When a divorce is undefended, the decree can be issued without either spouse having to appear at court.
specific issue order An order determining a specific issue relating to a child, for example when parents cannot agree about schooling or medical treatment.
statement of arrangements The form sent to the court with the petition if there are any children. It sets out proposed arrangements for the children. If possible, this should be agreed between both parents and signed.
statutory charge If you are receiving public funding (legal aid), this is the amount to be paid if the funding did not cover all your legal costs. Various rules apply.
summons A court demand for a person to appear in court at a specified time.
undefended divorce Proceedings by agreement or when there is no answer.
without prejudice This is a way of preventing the court at the final hearing from knowing about any negotiations which did not result in an agreement. You may see this term at the start of a letter. Calderbank offers and their responses ,however, may be disclosed to the court on the question of costs.
"When dealing with people, let us remember that we are not dealing with creatures of logic.
We are dealing with creatures of emotion, bustling with prejudices and motivated by pride and vanity." Dale Carnegie