Divorce – Ten Frequently Asked Questions
News article published on: 4th June 2019
- What is a No Fault Divorce?
A No Fault divorce is where the fact cited in the Divorce Petition is neutral i.e. the Petitioner does not apportion blame for the irretrievable breakdown of the marriage on the Respondent. Because of the way that the divorce laws are drafted in England and Wales, currently, the only no fault divorce fact to cite is either 2 years separation (which requires the Respondent’s consent) or 5 years separation. Anyone not wanting to wait, would need to cite the fact of adultery (and it is recommended that this fact is only cited if the Respondent will co-operate and admit the adultery), or the Respondent’s unreasonable behaviour. These are fault-based facts to cite. Desertion is the fifth possible fact to cite but is rarely used.
- Do I need to prove the adultery?
The additional costs of trying to prove adultery (and the acrimony that would likely lead to) are best avoided. If the Respondent will not admit the adultery then behaviour can be cited instead and the particulars can include the adultery.
- We have been separated but are still living together. Can I cite two years separation?
If you have been living completely separate lives under the same roof (and the Respondent consents to the divorce on this fact) then yes. Frequently couples do still share household chores, food shopping, cooking etc. especially when there are children. Bear in mind that at Decree Nisi stage the Petitioner is asked to state for the Court the domestic circumstances if you say you were living in separate households and sign a statement of truth attesting to that.
- What about irreconcilable differences?
That is not a fact which can be cited in a Divorce Petition in this jurisdiction.
- Does it matter whether it is me or my spouse that is the Petitioner?
In the main, no. Whoever is the Petitioner, and whatever fact is cited, has no bearing on the financial settlement on divorce or the arrangements for the children. Some clients prefer to be the Petitioner so that they are “in the driving seat”, and they are more in control of the timing for the Application for Decree Nisi and thereafter Decree Absolute.
- Do I need the marriage certificate?
Yes this needs to be sent to the Court with the Petition. It is not returned to you. The Court will not accept a photocopy but will accept a duplicate from the registrar where you were married.
- How much does a divorce cost?
The Court fee paid when the Petition is sent to the Court is £550. Solicitors’ fees from the drafting of the Petition to obtaining the Decree Absolute vary, but are commonly around £1,000 plus VAT.
- Can I ask my spouse to pay?
There is a section in the Petition where you can ask the Court to Order that the Respondent pays some or all of the Divorce costs (this excludes matters concerning the finances or children). It is recommended you try to agree this in advance as it can be expensive to argue about it through solicitors later (sometimes more expensive than the costs you are seeking to be reimbursed for).
- How long does it take to get divorced?
From Petition to Decree Absolute usually takes around 6 months. The part that takes longer to sort out is the financial settlement and any arrangements for the children. Whilst most couples do not go to Court for the divorce itself, they may end up in Court proceedings on the finances or shared care arrangements for the children if they cannot reach agreement.
In the divorce process, it is common for the Petitioner to pause once Decree Nisi has been obtained and not to apply for Decree Absolute until there is a financial settlement, recorded and made legally binding in a Financial Remedy Order of the Court. This pause protects the parties in case one of them died prior to a Financial Remedy Order from the Court being obtained.
- Can we discuss the divorce in mediation?
Mediation is generally used to discuss the weightier issues of a financial settlement and arrangements for the children, but often in a first mediation session clients will discuss the divorce process, who is going to be Petitioner, what fact is cited, and they may work on drafting some behaviour particulars if it is to be a Behaviour Petition, agree on how the Court fee is to be paid, etc.
Lisa Pepper; Partner, family law solicitor and mediator. Follow Lisa on Twitter @LisaPepperLaw.