Jim and Jane have experienced a few problems in their marriage. Jane has decided that she would like to seek a divorce and would like the advice of a solicitor in relation to exploring her options.
Jim and Jane live in Manchester and have been married for nearly ten years. Their marriage would therefore fulfil the two legal requirements for divorce in the jurisdiction of England and Wales specifically that:
- Jim and Jane must have been married for at least one year
- Jim and / or Jane must have a connection to England and Wales i.e. by being based in England and Wales or calling England and Wales their home.
At her initial consultation with a solicitor, Jane explains that Jim has been very argumentative and far less attentive towards her, compared to his behaviour at the start of their relationship. Jim’s drinking has increased and alongside this, he doesn’t appear to be coping very well with being overlooked recently for a promotion at work. Jane thinks that he is taking his frustrations out on her, although she stresses that Jim has never been violent, she confides that he does shout at her when he comes back from the pub and calls her names which she finds hurtful.
Jane’s solicitor explains that if she is to get a divorce in England and Wales she will need to show the court that her marriage has irretrievably broken down. To do this, Jane will need to consider the five grounds for divorce and decide which most appropriately reflects her circumstances.
Grounds for the divorce
To get a divorce in England and Wales, it is necessary to show that a marriage has broken down for one of these five reasons:
- Adultery (that your spouse has had an affair).
- Unreasonable behaviour (that your spouse has behaved in such a way that you can’t be expected to live together).
- That your spouse has deserted you for at least two years.
- That you have been living apart for two years and your spouse also wants a divorce.
- That you have lived apart for five years.
Jim has not had an affair, and as the couple have not yet separated, Jane opts for using ‘unreasonable behaviour’ in her petition against Jim. Although ‘unreasonable behaviour’ is one of the grounds for divorce based on the other person’s fault, Jane’s solicitor encourages her to consider how Jim will perceive the examples of the behaviour that Jane provides. Jane’s solicitor explains to her that it is important that matters are dealt with sensitively and practically, and highlights the importance of remaining as amicable as possible in the circumstances and avoiding being unnecessarily inflammatory.
Jane would need to draft the ‘particulars’ of Jim’s behaviour which will be relied upon to show that the marriage had broken down. Jane’s solicitor then explained that the next step would be to send Jim a copy of the divorce petition. This would be a way to engage with Jim and involve him in the divorce process and to ensure that he did not receive correspondence from the court which surprised or antagonised him. Jane’s solicitor points out that this approach helps to provide a good grounding for proceedings as they move forward.
Jane was unsure about the various steps of the legal process. Her solicitor explains:
- The Petition
Jane as the petitioner lodges a petition with the court. The petition is a document setting out details of the marriage, names, and addresses, dates of birth of any children and the grounds for divorce. The petition is sent to the court with the court fee (see below).
- Acknowledgment of Service
Jim would then receive a copy of the petition. He would be required to fill in a form to say that he has received it and that he accepts the divorce. This is known as an Acknowledgment of Service.
If Jim accepts that there needs to be a divorce, the divorce will proceed ‘undefended’. Jim’s solicitor (if he has one) would advise him as to how he can best complete the acknowledgement of service form to make his position clear – for example if he accepts that there should be a divorce, but doesn’t agree with Jane’s allegations about his behaviour.
If however Jim does not want a divorce, he would contest the divorce itself in court. This could prove financially and emotionally costly for both Jim and Jane.
If Jim does not return the Acknowledgement of Service, Jane’s solicitor would advise her as to the options to proceed in Jim’s absence. This can sometimes include asking the court bailiff to serve the papers on Jim again or making other applications to court.
- Decree nisi
Subject to Jim’s response to the divorce papers, there are another set of forms for Jane to complete to progress the divorce.
On receipt of those forms, the court will check the divorce papers as a whole, and if they are satisfied that Jane has shown her marriage has broken down, the court will confirm Jane’s entitlement to a divorce. This is confirmed by the granting of a decree nisi. The decree nisi does not mean Jane’s divorce is final. Nevertheless, the decree nisi is an important stage in the process as it is the point at which the court can approve any financial agreement that Jane and Jim may reach.
- Decree absolute
Jane can apply to finalise the divorce once at least six weeks and one day after the decree nisi was granted. This decree will bring her marriage to Jim to an end. There may be reasons, particularly in relation financial matters, as to why Jane might not wish to finalise the divorce straight away. This is something that Jane would discuss carefully with her solicitor at the time and based on her and Jim’s financial circumstances.
If Jane as the petitioner did not make an application within three months, Jim (as the respondent) would be eligible to apply for decree absolute himself. Jim’s application would not be automatically granted as Jane’s would because he is the respondent. Instead, the court would like a short hearing to understand why Jane has not made the application herself.
How much will a divorce cost?
Solicitor’s costs vary and we provide all clients with a bespoke cost estimate at the outset of their case.
As part of our service pledge we would tailor our service to Jane to match her needs and preferences. The right level of lawyer, at the right charge-out rate, would deal with her case and its various parts. This may mean a junior solicitor carrying out tasks such as drafting documents on Jane’s behalf, while a partner in the firm is responsible for the management and direction of the matter generally.
To divorce in England and Wales, a court fee (presently £550) needs to be paid at the start of the divorce process. However, it’s always worth checking if you or your spouse are eligible for a discount or exemption. If Jane is of limited means it is possible that she would be eligible for a reduced fee rate.
How long will it take to get a divorce?
If all parties are amenable, a straightforward divorce, from issuing the divorce petition to receiving your decree absolute is likely to take between four and six months, subject to an ‘pause’ during the process to consider financial matters. Successfully separating the finances of a marriage, will often add to the amount of time onto proceedings, and this will be explored in our subsequent blogs.
The process is not an exact science, and many courts are now experiencing increasing backlogs processing paperwork as a result of cuts to court services as we explain in our blog here
To represent yourself or seek professional legal advice?
Here at Maguire Family Law we always advise prospective clients to take legal advice as soon as possible, offering a detailed advice note as part of our initial consultation. We are specialists in dealing with separation, divorce and matters relating to children. We are sensitive to each situation and fully appreciate that no breakup is the same. Our advice to Jane would be to come in and talk to one of our trusted legal advisors as soon as possible to ensure she makes the right choices.
If you are separating and are looking for tailored personal advice, contact us today on 01625 544650