"Marriage" is a relationship that is created by law. Therefore when a marriage breaks down it must go through a legal process to end it. There are a number of ways to end a marriage and they are by:
- Judicial Separation
As divorce is the most common route we will go through the divorce procedure for an undefended divorce. Clients should, however, seek specialist legal advice on judicial separation or nullity if they believe it is an option for them.
Grounds for Divorce
In England and Wales there is only one ground for divorce and that is that the marriage has broken down irretrievably and there is no prospect of reconciliation. The Petitioner must prove that the marriage has broken down irretrievably by relying on one of the five facts.
The five facts are:
- That the Respondent has committed adultery.
- That the Respondent has behaved unreasonably.
- That the Respondent has deserted the Petitioner for at least two years prior to the petition being issued.
- That the Petitioner and Respondent have lived separate and apart for at least two years and they both agree to the divorce.
- That the Petitioner and Respondent have lived apart for at least five years.
Once the fact(s) has been established, the Petitionerís solicitor will draft the Divorce Petition. Further particulars are included explaining the relationship breakdown. The Petitionerís solicitor will also prepare a document called The Statement of Arrangements if children are involved. This details the present and future child care arrangements. The Divorce Petition with supporting documentation and a court fee is sent to any county court to be issued.
The court will then send to the Respondent a copy of the Divorce Petition, Statement of Arrangements and an Acknowledgment of Service. The Respondent will complete the Acknowledgment of Service indicating whether they want to defend the divorce and if they agree with the Statement of Arrangements. The document is then sent back to the same county court.
Once the county court receives the Acknowledgment of Service they will send a copy to the Petitionerís solicitor. If the Respondent has indicated an intention to defend the Petition a different legal procedure applies. The Petitionerís solicitor will advise a Petitioner of the available options.
Affidavit in Support of Petition
In an undefended divorce the Petitionerís solicitor will now prepare the Petitionerís Affidavit in support of the Petitioner. This document states that the Petitioner has read all of the documentation and swears that the contents are true. The Affidavit must be sworn by a person authorized to do so, i.e. another firm of solicitors who have not prepared the Petition or a court appointed person. The Affidavit is then sent to the court for the judgeís consideration.
The judge will look at the documents before him and will approve the contents if all is in order. The judge will also set a court date to confirm that the Petitioner has established the ground for divorce and the court is satisfied that the marriage is broken down irretrievably. The court will issue a Certificate of Entitlement to a decree confirming these details. This stage is called the Decree Nisi stage but does not end the marriage. Neither the Petitioner nor the Respondent are expected to attend court for the pronouncement of the Decree Nisi.
The Petitioner can apply, six weeks and a day after the date of the Decree Nisi, for the Decree Absolute. The Decree Absolute legally ends the marriage.
The Decree Absolute is an important legal document and should be kept in a secure place. It can affect any Will made prior to its pronouncement and the Petitioner should consider making a revised or a new Will. Secondly, the parties are free to remarry. Here at FLS
we advise you on the implications of remarriage on your existing and future finances.