Written by Nigel Shepherd

National Head of Family Law at Mills & Reeve LLP

Nigel is Head of Family at national firm Mills & Reeve and is the only person to have twice been Chair of family justice organisation Resolution (1995-97 and 2016-18). He is a specialist family lawyer, collaborative practitioner and family arbitrator with almost 40 years’ experience dealing mainly with the more complex financial issues (eg, businesses, trusts and pensions) that need to be negotiated when a marriage or other personal relationship sadly comes to an end. Nigel also advises on arrangements for children and has expertise in drawing up pre- and post-marital agreements and cohabitation contracts.

It’s a sad fact that currently around four in every ten marriages end in divorce. If you are facing the breakdown of your marriage, this article will explain the basic legal principles and process for a divorce in England & Wales (the position is different in Scotland and Northern Ireland). It will provide some practical guidance to help you as parents navigate the divorce process in a way that reduces conflict for the benefit of your children. Finally it will highlight why the current law needs to be changed to support this. Although throughout the references are to divorce, the legal position in relation to the dissolution of civil partnerships is almost completely the same.

The “grounds” for divorce

There is in fact only one ground for divorce, which is that the marriage has “broken down irretrievably”. However, this has to be established by proving one or more of five specific “facts”. The person asking for the divorce is called the petitioner and the other spouse is the respondent. The five facts are

  • the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent (adultery). This is not available for civil partnerships.
  • the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (behaviour)
  • desertion for two years (very rarely used)
  • separation for two years with the respondent consenting to the divorce (two years separation)
  • separation for five years. No consent is needed. (five years separation)

The court has to have jurisdiction to deal with the divorce based on your connection to this country. For most people born or living here for any period of time this is not a problem, but it’s possible for more than one country to be involved and the rules are complex. Procedure and financial outcomes can vary significantly between countries and specialist advice is highly advisable if you have any international aspects in your case.

The process

The petitioner starts the process by sending a divorce application form to one of the regional divorce centres. If you are not using a solicitor the application can now be made online and in due course the plan is to extend this to all cases. You will need the original marriage certificate or a certified copy (which you can get online) and there is a fee of £550. If you are on certain benefits or a low income you may be able to get money off the fee.

When the papers arrive from the divorce centre, the respondent completes an acknowledgment of service. The questions on this form depend on which “fact” is being used. Unless the respondent wishes to defend the divorce (and for reasons explained below the vast majority are undefended) the petitioner then sends in a statement confirming the truth of the petition and if the court is satisfied that everything is in order a decree nisi will be pronounced. This confirms the entitlement to a divorce and six weeks later the petitioner can apply for the final decree absolute, which formally brings the marriage to an end. Divorce is an important change of status and there may be reasons for holding back on the decree absolute, for example to get certain financial arrangements in place first.

The “Blame Game”

Most divorces are based on one of the two “fault” facts of adultery or behaviour. This is not necessarily because couples want to blame each other. Often they don’t. It’s because in order to deal with things on a truly no fault basis you have to wait at least two years and most people don’t want or can’t afford to put their lives on hold for that long. The court’s ability to make certain financial orders (even by agreement) depends on there being a divorce. For example, there has to be a divorce and a formal court order to achieve pension-sharing. This means that if you want to get everything sorted out sooner rather than later, you are pushed into alleging adultery or behaviour even if you agree that neither of you is more responsible than the other for the marriage breaking down and you want to keep things as amicable as possible so you can concentrate on making the best arrangements you can for your children and deal fairly with the financial consequences. It’s important to note that the reason for the divorce itself almost never affects what happens in relation to these arrangements.

In practice there is a very low threshold to get an undefended behaviour divorce through. If you are using a family lawyer who is a member of Resolution you will be encouraged to keep the behaviour allegations in the divorce application as mild as possible to avoid causing unnecessary distress and conflict. If you’re not legally represented you should still do the same. This is particularly important if you’re looking to deal with the things through mediation or collaboratively. If you’re the respondent you can agree to the divorce even if you don’t accept everything that’s said about your behaviour or that it’s the actual reason for the marriage breaking down. This is why the current legal process is often referred to as the “blame game”. The key is to do everything you can to focus on the future not what’s gone wrong in the past. It can be really hard to do when emotions are running high and you’re feeling hurt, but seeing the divorce process itself as a means to an end will help you move forward more positively. Crucially, the more you can avoid conflict the better it will be for your children and they will thank you for it.

This is why as a solicitor with over 35 years’ experience in family law work and through my involvement with Resolution I’ve been campaigning for so long to reform our divorce laws. To end this blame game. Everyone who is committed to helping those whose relationships have unfortunately broken down agrees the law needs changing. I hope it will happen soon.





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