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Divorce Procedure -

Advice you can trust | Nicola Williams Solicitor

Divorce Procedure -

Advice you can trust | Nicola Williams Solicitor

Advice you can trust

Nicola Williams Solicitor

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England and Wales have the same legal system for divorce and dissolution.

Divorce is the legal process by which a marriage is brought to an end.

Dissolution is the legal process by which civil partnership is brought to an end.

 

Can I get a divorce/dissolution in England or Wales?

If you and/or your spouse/civil partner are habitually resident in England or Wales you may begin divorce/dissolution proceedings here.

If you have been habitually resident in another EU country there are restrictions on which EU country should deal with your divorce/dissolution.

If you are not British but either you or your spouse/civil partner have lived in England or Wales for at least one year you may begin divorce /dissolution proceedings here.

If you are a British National and have been living abroad in another EU country but have returned to live here you may begin proceedings if you have been back here six months.

If neither you nor your husband/wife/civil partner have lived in England or Wales or in any other EU country for these minimum periods you may still be able to bring divorce proceedings in a number of circumstances, for example if Britain is your domicile (which it usually will be if you were born here).

A person's domicile is not given up simply because he/she chooses to live abroad, even for a number of years.

However, you should check your particular circumstances with your solicitor to ensure that you satisfy the jurisdiction criteria of the English and Welsh courts.

 

Restriction on starting a divorce/dissolution within the first year of marriage.

No one can begin divorce proceedings under English and Welsh law until they have been married for at least a year.

The date on which you were married is ignored for the purposes of calculating the year and so you cannot begin proceedings until at least the day after your first anniversary.

 

Where can I find the forms?

Forms are available to download on the court service website free of charge.

Alternatively you may use my online divorce service .  

Do I need a solicitor?

Everyone is entitled to represent themselves in any court proceedings.

You may choose to use a solicitor to help you with divorce/dissolution. Many people also complete the forms themselves without employing a solicitor at any stage.

 

How long does divorce/dissoluton procedure take in England and Wales?

If you and your husband/wife/civil partner are both co-operative and do what you need to do as soon as you can at each stage, it will take between 3 and 6 months for the court service to complete the paperwork, pronounce your decree and grant your decree absolute/final order.

Getting things wrong and lack of co-operation is what usually causes delay in divorce/dissolution proceedings.

How much does divorce/dissolution cost?

The court fee charged by the court service is £550. If you are on a low income you can fill in a form to apply to reduce that fee. It is up to the court service whether to grant your request.

In addition to court fees there will be a charge if you use a solicitor or my online service.

 

Do I need to send the forms to my spouse/civil partner first before I send them to the court?

Solicitors abide by a protocol which recommends sending a draft of a divorce/dissolution petition to the respondent to approve the contents before it is sent to the court.

This relies on a degree of cooperation between the spouses/civil partners. It is intended to reduce conflict where the reasons for the divorce are based on unreasonable behaviour.

Whilst there are good reasons for the protocol it is not applicable to people dealing with their own divorces/dissolutions and so you are not obliged to send a copy to your spouse/civil partner.

 

What reason should I put in the divorce/dissolution petition?

Choose the most straightforward reason you can if you want to remain amicable.

If you have been separated 5 years or more this is the best reason to put in the petition. Most people don't wait this long.

If you have lived apart for 2 years, try to agree that this is the best way to proceed and that the person receiving the petition will sign the paperwork necessary to proceed as soon as he/she possibly can.

If one of you has committed adultery, it may be better to acknowledge that and accept this as the reason the marriage has broken down, rather than see a long list of your unreasonable behaviour as an alternative. But be aware that for adultery and unreasonable behaviour petitions the court can tell the person who is blamed for the breakdown in the marriage/civil partnership to pay the fees. This includes the court fee and any solicitor's fee the petitioning party has paid. So it is a good idea to sort this out before agreeing to admit adultery.

Adultery is not an option for dissolution of civil partnership.

Finally, unreasonable behaviour is the most common reason for divorce/dissolution. This is because you can use this reason however long you have been separated and even if there has been adultery but the other person won't admit it.

It might seem easy enough to draft your own reasons for divorce/dissolution, but if you are using unreasonable behaviour it is a good idea to use a solicitor to check the form for you. Too many details can lead to petitions being defended. Too few can lead to the court rejecting the petition and you having to pay to amend it.

Getting the balance right isn't as easy as it seems. When drafting unreasonable behaviour petitions aim to produce a form that is acceptable to the court and yet not so offensive as to cause even more stress between you and your husband/wife/civil partner. This is particularly important if you have children. For this reason you may want to consider having a little help with the drafting.

 

Can my spouse/civil partner defend my petition?

Yes. But he/she will have to pay a court fee (unless he/she is exempt from paying court fees). The court fee is £200.

Judges try to discourage defended proceedings.

If your proceedings become defended you will probably need assistance from a solicitor to sort it out.

 

My spouse/civil partner hasn't responded to my petition - what shall I do now?

The first thing you should do is try to contact him/her and find out what the problem is.

It may be that a form has gone astray or been lost.

If he/she is just being difficult and the problem cannot be resolved, you can arrange to have him/her served personally.

You do this by one of two methods:

You can use the court bailiff or

You can use a private bailiff.

The court bailiff is £105. A private bailiff is around £100 including vat.

 

How do I know when to apply for my decree nisi/conditional order?

As long as you have received the acknowledgement of service back from your husband/wife/civil partner indicating that he/she does not defend the proceedings (and either admits adultery or consents to the divorce if these are the reasons you are using) you can apply for the decree nisi.

If you have used a bailiff and have a certificate to show that your husband/wife/civil partner has knowledge of the proceedings and the time limit for filing an answer has expired you can also apply for the decree nisi.

 

When will I get my decree absolute/final order?

Six weeks and one day after the date your decree nisi/conditinal order is pronounced you can apply for the decree to be made absolute/a final order if you are the petitioner.

If you are the respondent you cannot apply for a further three months from the first date the petitioner can apply. So altogether that is around four and a half months after the decree nisi/conditional order.

The procedure for the respondent is also different from that of a petitioner. You have to make an "on notice" court application. You may need help from a solicitor to do this.

 

I have received a divorce petition - what shall I do now?

You need to read the petition and if necessary take advice on whether there is anything in it that would be prejudicial to you if you were to allow it to proceed undefended.

If it is an unreasonable behaviour petition you should be careful that it does not contain any allegations that may be considered criminal or affect your future contact with children or any future job prospects you may have.

If you are happy with the contents of the petition and have taken legal advice and want the divorce/dissolution to proceed quickly, sign the acknowledgement of service paperwork and send it back to the court.

Instructions on how to do this are sent to you with the petition by the court.

If you are in any doubt about your legal position seek advice before signing anything.

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