By Louisa Whitney, LKW Family Mediation
Many people going through a separation or divorce get confused about this because for them the word divorce feels like it should encompass all of the issues that they feel need to be sorted out. However, from a legal point of view the divorce is just the legal ending of the marriage. Going through a divorce process doesn’t sort out money issues or making arrangements for your children. It is possible to get divorced and not sort out any issues although this is not something we would recommend!
The divorce process is essentially a paperwork exercise with forms being submitted to court. From a strictly legal perspective it is usually very straight forward as long as paperwork is completed properly. On an emotional level there can be a huge myriad of emotions going on and getting the final certificate (called a Decree Absolute) saying you’re finally divorced can bring up sadness, grief or joy (or all three at the same time or more emotions).
The process starts with one person completing a form to petition (i.e ask for) a divorce. The only grounds for divorce is that your marriage has permanently broken down. But currently you have to base the petition on a particular fact. These are:
- Adultery – this is defined as sexual intercourse between a man and a woman
- Unreasonable behaviour – a subjective test of behaviour that is unreasonable to you and not anyone else. So you can say that the other person was unhelpful around the house, never expressed affection and didn’t buy you a birthday present. It doesn’t have to be huge things.
- Desertion (this is rarely used)
- You’ve been separated for 2 years and the Respondent (the person not petitioning for divorce) agrees that the divorce can go ahead.
- You’ve been separated for 5 years (and the other person doesn’t have to agree to the petition)
Currently the law says that if you haven’t been separated for 2 years then the divorce has to be based on either adultery or unreasonable behaviour which means that you have to say the divorce is the other person’s fault – either because they have committed adultery or because they behaved unreasonably.
This leaves lots of separating couples in an unpleasant situation. If you separated a year ago and your spouse is now in a relationship with someone else then technically you can petition for divorce based on their adultery. But neither of you may feel that that’s the reason your marriage ended, because the relationship began after that. In addition to this you may feel you grew apart so having to make allegations of adultery or unreasonable behaviour against the other person can feel uncomfortable and can sometimes inflame an already tense situation.
There are moves to change the law so that you don’t have to allege fault but we are not there yet unfortunately for anyone going through a separation right now.
Once the person petitioning for divorce sends their divorce petition to the court and pays the court fee (this can be done online now) then the petition is sent to the other person and they have to say if they agree with the grounds for divorce. Essentially this means
- They accept they have committed adultery
- They accept the allegations of unreasonable behaviour
- If you have been separated for more than 2 years but less than 5 then they agree to the divorce taking place
If the other person doesn’t do this then you may be able to proceed if you can show the court that the person has received the petition but isn’t replying. This will not be the case where your divorce is based on you being separated for 2 years and the other person agreeing as they have to explicitly give their consent.
Once this has been done the person petitioning for divorce then asks the court to pronounce the Decree Nisi. This is the middle stage of the divorce (although it’s really the second to last stage). When you see newspaper headlines about a celebrity getting a divorce in 5 minutes they really just mean the Decree Nisi has been pronounced. If you listen carefully you can hear family mediators and lawyers shouting! You don’t have to attend court to hear the judge reading out the details. You then have to wait for 6 weeks to pass from the day after the Decree Nisi until you can apply for the Decree Absolutely which is the final stage. Usually a lawyer will advise you not to do this until you have sorted out money.
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