Divorce in England and Wales

Divorce is the formal legal ending of a marriage through court action. The partner who is applying for the divorce is the petitioner and the other partner is the respondent.

Before a divorce petition can be presented in court it is a legal requirement that a couple must have been married for at least one year (in Northern Ireland a couple can only divorce once they have been married for at least 2 years. In Scotland neither of these rules applies).

To ensure that the court has jurisdiction to dissolve the marriage both parties also have to be satisfy the residence rules. Although the detail is more complex, the general rule is that at least one spouse has to be resident or domiciled in England or Wales at the time the divorce proceedings are being initiated.

Five Grounds for Divorce

A divorce can only be granted if the marriage has irretrievably broken down. To prove this to the court the petitioner must be able to satisfy the court that one of the following grounds has occurred:

The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent as a married couple
The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them
The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the divorce petition and the respondent consents to the decree being granted
The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition

Judicial Separation

A judicial separation is a court order that legally ends the obligation of the married partners to live with each other. The order does not end the marriage itself, though, so neither partner can remarry once they have obtained the order.

While one of the five grounds for divorce will also have to apply in the case of a judicial separation, there is no need to prove to the court that the marriage has irretrievably broken down.

As part of the financial arrangements the court can order a transfer of property in the same way as in a divorce case.

The Divorce Process

In an undefended divorce both partners accept and consent to the divorce being granted.

In a defended divorce one partner resists the petition and raises a defence against the divorce being granted

The relevant forms can be obtained from the divorce or family section of the local county court.

Mediation

If there are difficulties agreeing on specific issues such as arrangements for children or financial matters during the divorce proceedings then family mediation can assist in resolving disputes. There may still be a need for legal advice and support of interests to ensure all rights are protected.

Collaborative Family Law

Collaborative family law is another option and can help couples resolve any disputes they have and to reach decisions they both agree on. Separating couples and their respective lawyers all meet together to reach solutions rather than going to court. The aim is to make the process of separation and divorce both less traumatic and less expensive.

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