Stuart Barton (Head of Department) and Paula Fraser
Divorce has long since lost its historical social stigma. During 2010 nearly 120,000 couples went to the court to ask for a divorce. Despite the common nature of divorce, there are many myths and misconceptions regarding how a divorce is obtained. If you are considering separation or divorce, one of the worst things you could do is speak to other people about their own experiences of separation or divorce. Each divorce is unique and it is vital to receive accurate advice from the outset. Detailed below are answers to some of the most frequently asked questions concerning separation and divorce.
Do I have to get divorced?
There is no legal requirement for a separated couple to obtain a divorce. Some separated couples remain married for several years after separating. Some never get divorced but this is not generally recommended. For those who hold strong religious views against the idea of divorce, an alternative to divorce is judicial separation. This allows a couple to resolve financial matters arising from the separation but the couple remain legally married.
Can I have a divorce?
The court cannot consider an application for a divorce or dissolution of a Civil Partnership until at least one year after the marriage/Civil Partnership took place. If the marriage or Civil Partnership breaks down any earlier, it may be possible to have it annulled. An annulment is only available in limited circumstances however.
What are the grounds for divorce?
There is only one ground for divorce or civil partnership dissolution in England and Wales – that the marriage/civil partnership has broken down irretrievably. This must be established by proving one of the following facts:
a. that your spouse has committed adultery and you find it intolerable to live with them;*
b. that your partner has behaved in such a way that you could not reasonably be expected to continue living with them;
c. that your partner has deserted you for at least two years;
d. that you and your partner have lived separate and apart for two years and your partner consents to a divorce;
e. that you and your partner have lived apart for a continuous period of five years.
*Please note that in cases of same sex marriage and Civil Partnership dissolution, adultery cannot be relied upon for a divorce.
We got married abroad. Can I seek a divorce in England and Wales?
The short answer is yes. Provided you (or your partner) have lived in England and Wales over the recent period, the fact that you married abroad does not matter. However, if your marriage certificate is not written in English, you will need to obtain a translation of the certificate when it comes to starting any divorce.
My partner now lives abroad. Can I seek a divorce in England and Wales?
The short answer is again, yes. It can be more difficult to obtain a divorce where your partner lives overseas but provided they can acknowledge receipt of the divorce papers, this should not be a huge obstacle.
My partner has been unfaithful. Do I need to name the third party in my divorce?
There is no requirement to name any third party in a divorce. It is seen as good practice not to name any third party unless there is an expectation that your partner may defend the divorce.
My partner has been unfaithful. Do I need to provide evidence of this to the court?
You should not have to. In most cases, evidence of adultery is not required. Frequently, your partner will be asked to sign a ‘Confession Statement’ by way of admitting their adultery.
Basing my divorce on adultery or unreasonable behaviour means that I will receive a better financial settlement, doesn’t it?
For the overwhelming majority of cases, the reasons why the marriage broke down are simply irrelevant when it comes to how financial matters are resolved.
Will I have to go before a Judge?
Unless the divorce or the issue of costs is disputed, you will not need to go before a Judge to obtain a divorce.
Can I change my mind about the divorce, even if it has started?
A divorce can be stopped at any point before the final decree, known as decree absolute. It is not unusual for parties to have ‘second thoughts’ regarding divorce.
Do I have to use a solicitor?
There is no requirement for anybody to use a solicitor in a divorce. It has become increasingly common for people to pursue a DIY divorce and many do so successfully. However, there are many pitfalls with divorce procedure and solicitors often encounter those who have become stuck or lost along the way.
Divorce takes years to resolve, doesn’t it?
The average timescale for most divorces is four to six months. Divorce can take longer than this; the normal reason is that the parties struggle to resolve financial matters arising from the divorce.
Divorce costs thousands of pounds, doesn’t it?
The most expensive element of any divorce is usually the resolution of financial matters. The costs involved in the actual divorce should not be extensive. Court fees for a divorce/Civil Partnership dissolution are £550. Fees charged by solicitors vary across the country but many solicitors offer a fixed fee for undefended divorce.