Applying for divorce is most often a difficult and emotional time for everyone involved in the relationship. The practicalities and arrangements that need to be made through divorce proceedings can make it all the more daunting – factors such as finances, possessions and family only add to the complexities.
If you’ve made the decision to initiate divorce proceedings, here is the first part of our three part guide to help prepare you for the process.
How to file for divorce
Without exception, it is not permissible to apply for divorce within your first year of marriage. In order to separate from your partner before you have been married 12 months, you should consider nullity or judicial separation or enter into separation agreement.
To file for divorce, you will need to visit Her Majesty’s Courts Service website (https://www.gov.uk/divorce/file-for-divorce) and complete forms D8 and D8A, or visit your local family court to request the forms or create an account or apply online for the divorce. If you and your partner both agree to the divorce, this is known as an Undefended Divorce. If one of you does not agree, this is a Defended Divorce.
Undefended Divorce: Although it is not always necessary to have a solicitor for an undefended divorce, they can offer valuable legal advice before application. This could be anything from confirming that there is sufficient grounds for divorce, what evidence may be required, and offering expertise in disputes regarding children, property or finances.
Defended Divorce: It is usually necessary for both partners to seek a solicitor in a defended divorce and a barrister is required to hear the case. If possible, partners should attempt to form an agreement before going to court, as legal fees can soon add up if the dispute becomes lengthy. If domestic abuse is involved in the relationship, you may be entitled to legal aid to help cover costs.
Grounds for Divorce
A divorce will be granted if the court is satisfied a marriage has permanently broken down – known as an irretrievable breakdown. To show this, one of the following must be proven:
– Adultery of the other spouse (not applicable for same sex couples)
– Unreasonable behaviour of the other spouse
– Desertion by the other spouse after two years
– Separation with consent after two years
– Separation without consent after five years
Adultery of the other spouse: Divorce may be granted if one partner has had sexual intercourse with someone else (committing adultery) and the other partner can no longer bear living together. Adultery is not a valid reason for divorce if you have been living with your partner for longer than 6 months after you found out about the infidelity.
If both partners agree to the divorce, the court will require statements and dates when/locations where the adultery took place. If one partner does not agree to the divorce, further proof will be required, which can become difficult and expensive to obtain.
Unreasonable behaviour of the other spouse: This includes mental and physical cruelty such as violence, abuse, dominating a partner, preventing them from socialising, or refusing to contribute financially. As with divorce, if one of the partners does not agree to the divorce, evidence such as statements from friends/neighbours may be necessary although this is rare.
Desertion by the other spouse after two years: If your partner left home with no reason, against your wishes, this is known as desertion. You are eligible for divorce if your partner left continuously for two out of the previous two and a half years. The court will require proof of desertion. The ground is hard to prove and is seldom used.
Separation with consent after two years: If you and your partner have been living apart for two years continuously and both agree to a divorce, this will be taken as proof that the marriage has irretrievably broken down.
Separation without consent after five years: If you and your partner have been living apart for five years continuously then it is not necessary for both partners to agree to a divorce. Although a court will usually agree that this is proof that the marriage has irretrievably broken down, your partner can claim it will cause unreasonable hardship.
Care should be taken when considering a fact for divorce as if the facts are insufficient or one party withdraws their consent, or time scales have elapsed then the court may refuse a decree of divorce. A Divorce Application will then need to be amended or withdrawn and reissued which can be extremely costly and time consuming. Therefore legal advice is always recommended to ensure a smooth and stress free divorce.
Consideration will also need to be given as to whether an order for costs is being sought against the other party as if this is not completed on the Application for divorce, a claim cannot later be made. Consideration also needs to be given to any financial claims in the future as again this needs to be set out on the original Application and can have an impact on applying to the court later on in the proceedings.
- Part 2 – Applying for a decree nisi and/or decree absolute
- Part 3 – Divorce Settlements, Financial arrangements and children
Backhouse Solicitors are experts in all areas of family law. If you would like further advice or guidance relating to your individual circumstances please contact our legal team today on 01245 893400 and book a FREE 30 minute consultation. Fixed fee divorce packages are available and further details can be given on request.
The Backhouse Solicitors Team