Grounds for Divorce/Dissolution of a Civil Partnership
There is only one ground for divorce and that is that the marriage has broken down irretrievably. In order to issue divorce/civil partnership proceedings, a year has to have elapsed since the date of the marriage before the Petition can be presented to the Court. The person who takes the lead on the divorce becomes known as the Petitioner and the other party becomes known as the Respondent.
To prove that the marriage or civil partnership has broken down irretrievably, you have to satisfy the Court on one of the following facts namely:
- Adultery – the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent. This fact is not available for the dissolution of a civil partnership.
- Unreasonable behaviour – The Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with the Respondent.
- Desertion – That the Respondent has left the Petitioner at least 2 years before the petition is presented – this is rarely used or relied upon, and if the parties have been separated for 2 years then they will normally proceed on a 2 year separation petition.
- Two years separation – the parties have lived separate and apart for at least 2 years before the presentation of the Petition and the Respondent is consenting to the divorce/dissolution.
- Five years separation – the parties have lived apart for at least 5 years and that no consent is required by the Respondent.
The Petition for divorce/dissolution will set out the background to the marriage and states why the Petitioner says that the marriage has broken down irretrievably.
The Petition needs to be accompanied by the original marriage certificate or civil partnership certificate and there is a Court fees of £550 (currently). You may be eligible for some exemption of the Court fee if you are on a low income. We can assess this prior to issuing any proceedings.
The Court will then issue the Petition and send it out to the Respondent with an Acknowledgment of Service. The Respondent must complete and send this back to the Court within 7 days of receipt. Normally the Respondent will agree the content of the Petition and will allow the proceedings to proceed undefended.
Divorce proceedings are very rarely defended, but we will explain to you, if necessary, should proceedings become defended, the procedures involved.
If the Respondent does not send the Acknowledgment of Service back to the Court, we will explain to you the options available to proceed with the Petition.
Upon the receipt of the Respondent’s Acknowledgment of Service, we would then prepare a Statement in Support of Petition together with an application for Decree Nisi. These need to be signed by you before submitting them to the Court. The application will be considered by a District Judge and if he/she approves the contents of the Petition, the Court will fix a date for the pronouncement of the Decree Nisi.
At the hearing for the pronouncement of Decree Nisi, the District Judge will consider whether to grant the Decree Nisi or not, and will also consider whether any costs orders should be made against the Respondent. It is not normal for the parties to attend at the Decree Nisi hearing unless the Respondent challenges the making of the Decree Nisi or any Order for costs.
Once the Decree Nisi has been pronounced, 6 weeks and 1 day thereafter the Petitioner can apply to the Court for the Decree Absolute. If the Petitioner does not make the application for the Decree Absolute in that time, the Respondent is able to make an application 3 months from the date of the Decree Nisi for the Absolute to be pronounced.
The Decree Absolute dissolves your marriage and replaces your marriage certificate.
As a result of the pronouncement of the Decree Nisi:
- parties are free to re-marry
- any reference to spouse to a Will is removed. A new Will should be made especially if there is property or children of the family.
- Pensions – the parties will lose their rights under any of the pension schemes of their former spouse. This is why we would not apply for a Decree Absolute until financial matters are agreed and concluded.