Payne Hicks Beach

Payne Hicks Beach

15 December 2020

Divorce: Your questions answered

  • Can either party file for divorce?
    • Yes.  Provided that you have been married for a period of at least one year and are able to satisfy the necessary criteria for divorce then either party can apply for a divorce.

  • What are the grounds for filing for a divorce?
    • In England the sole ground for divorce is that the marriage has irretrievably broken down.  However, under the current law this has to be supported by reliance on one of five facts:-

      a) Adultery;

      b) That your spouse has behaved in such a way that you cannot reasonably be expected to live with them;

      c) Desertion;

      d) Separation for a period of two years and both parties consent to a divorce; or

      e) Separation for a period of five years – no consent required.

      The law in this area is changing and it will no longer be necessary to rely on one of these five facts. These changes are expected to become law in autumn 2021.

  • Does it make a difference if I petition for divorce or am the respondent to a petition?
    • Very rarely.  In the vast majority of cases it makes no difference if you are the petitioner or the respondent.

  • What is no fault divorce?
    • Family lawyers have complained for a long time that the current system which essentially requires one party to “blame” the other party for the marriage breaking down is unhelpful and causes unnecessary conflict and acrimony.  The Divorce, Dissolution and Separation Bill sought to remove the fault element and has received Royal assent.  It is expected to become law in Autumn 2021.  Thereafter it will no longer be necessary to rely on one of the 5 grounds set out above.

  • Can people see what I have written in my divorce petition?
    • No. The divorce petition will not be available to members of the public.  The pronouncement of decree nisi takes place in open court but will only refer to the fact relied on and not the specific contents of the petition.

  • How long will it take to get a divorce?
    • The length of time it will take to get a divorce will depend upon whether you and your spouse can agree on the divorce, whether your spouse completes the paperwork quickly and whether you need to wait to finalise your divorce to complete the financial settlement between you.  It is possible to complete the divorce process in around 4-6 months if both parties agree.  However, you may be advised by your lawyers not to apply for the final decree of divorce if you have been unable to reach a financial settlement. This is usually because on a grant of Decree Absolute (finally ending the marriage) you will no longer have certain rights under some pension schemes and insurance policies and it is important not to lose these rights until a financial resolution has been reached.

  • Will I have to go to court?
    • Unless you or your spouse is contesting the divorce (which is very rare) there is usually no need for either party to attend court.

  • What happens if I change my mind?
    • Until Decree Absolute is granted by the court the marriage subsists.  Up until that point it is possible to invite the court to dismiss the petition.

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

The firm is authorised and regulated by the Solicitors Regulation Authority: SRA Number 00059098

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