Making the decision to end your marriage will never be an easy one, but understanding the divorce process may help you to feel a little more in control of what is happening. This guide will lay out the procedure for you and highlight some of the areas you need to consider.
In order to start the divorce process, you must have been married for a least a year and your marriage must have irretrievably broken down. Once you have decided that this is the case, you must decide which of the five divorce facts you will rely upon. They are:
Adultery – you may think this is self-explanatory, but this fact cannot be used in a same sex divorce due to the legal definition of adultery – this is a sexual relationship between someone of the opposite sex, who is not their spouse. This is a difficult fact to use in a divorce, particularly if your spouse does not admit to the adultery. If this happens, you will have to prove it happened and this can be hard to do.
Unreasonable behaviour – this covers a large scope of behaviours which could range from domestic violence or mental abuse to not taking part in cleaning and managing the house. It is important to understand that you will have to explain your spouse’s behaviour and the impact on you and demonstrate several times when this behaviour has happened.
Desertion – if your spouse left and you do not know where he or she is and you don’t know why they left.
Separated for two years – you can divorce after a two year separation as long as your spouse agrees to the divorce.
Separated for five years – if your spouse does not agree to the divorce, you will need to separate for five years. After that period, you can end the marriage without their consent.
Once you have decided on which fact you will use for your divorce, you will then complete a Divorce Petition, also known as a Form D8. You can get hold of this form along with the guidance notes from the court service website or from your local court.
If you have children and they are under 16 years of age or still in education full time, you will have to complete a Statement of Arrangements for the Children, known as a SAFC or Form D8A. This only sets out the arrangements for your children and the court will not make any decision on who your children live with, without you making a separate application to the court alongside your divorce.
On the divorce petition, you will need to indicate any financial claims you will make against your spouse. You should get legal advice on this as if you miss any elements off at this stage, you will not be able to claim later.
You will issue (a legal term used to indicate it has been sent) the divorce petition to the court along with your marriage certificate and once you do this you will be known as the ‘Petitioner’ and your spouse is the ‘Respondent’.
The court will send the petition to your spouse, known as service and they must respond to acknowledge service, usually within eight days, by signing and returning the acknowledgement of service.
Once this has happened and your spouse does not contend the divorce, you will sign an affidavit to confirm all details are true and a judge will decide by reading the paperwork if you should be granted a divorce.
You will be given a Certificate of Entitlement to Decree Nisi and this will show the date and time your Decree Nisi will be given in court. After six weeks and a day, you can apply for your Decree Absolute and you are now officially divorced.
Do speak to a solicitor about the process, your rights and any issues about children and your financial situation so you are protected.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitors before decisions are made and before you embark on a certain course of action.
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