Understanding divorce – the legal process involved in splitting up

The legal process involved in splitting up can take some people by surprise, and it often takes advice from divorce solicitors in London to bring home what’s involved. The intricacies of divorce – not just the legal process of dissolving the relationship, but the arrangements that need to be made regarding finances, care of children, and other practical matters that may arise – can be complex. Even though it is not essential to engage a London divorce lawyer to assist with the legal process of divorce, many find that the support of the best divorce lawyer they can find will do much to ease what is inevitably a painful and often distressing process.

Separating the divorce from financial and other arrangements

When understanding divorce, one of the key things to remember is that the divorce itself is concluded under a separate process from the financial arrangements and any arrangements that need to be made for the care of children of the relationship. Of course, these matters have to be dealt with alongside the divorce itself, and can be intertwined, but in this blog, we look at the legal process of divorce itself – of no longer being married.

Grounds for divorce and the five facts

Although people refer to different ‘grounds for divorce’, the best divorce lawyers in London will explain that the only ground for divorce is the irretrievable breakdown of the relationship. This is set out in the Matrimonial Causes Act 1973, section 1(1) which states that

“…a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably”

The person seeking the divorce (the petitioner) has to show how the marriage has irretrievably broken down, and can do this by proving one of five facts, also included in the Matrimonial Causes Act 1973. These are:

- That the respondent (the partner in the marriage that is coming to an end) has committed adultery, and the petitioner finds it intolerable to live with the respondent;

- The respondent has behaved so unreasonably that the petitioner cannot be expected to live with him or her;

- That the respondent has abandoned the petitioner for at least 2 years (this must be 2 years immediately before the petitioner applies for divorce);

- That the respondent and petitioner have lived apart continuously for 2 years and the respondent agrees to the divorce;

- That the respondent and petitioner have lived apart continuously for 5 years

Each of the five facts has its own particular nuances. Adultery, for example has 2 parts to it – the fact of the adultery by the respondent, and that the petitioner finds it intolerable to live with the respondent as a result. Unreasonable behaviour looks at whether ‘this’ petitioner can no longer live with ‘this’ respondent as a result of the behaviour. The whole history of the marriage will be considered. This ‘fact’ – unreasonable behaviour - has recently been in the news in the high profile case of Owens v Owens in which Mrs Owens failed to convince the Supreme Court that her husband’s behaviour was sufficiently unreasonable to grant a divorce. The case has attracted such publicity that it has brought to a head the need for a ‘no fault divorce’ – and led to the UK Government announcing that it does indeed plan to legislate for no fault divorce.

The divorce petition

With the relevant fact or facts established, the petitioner must file a divorce petition with the family court. The divorce petition is the document that formally starts off the divorce proceedings, and once filed with the court, a copy will be sent to the respondent who must then acknowledge service.

Acknowledgement of Service

Acknowledgement of service is the form the respondent must complete to say that he or she has received the divorce petition and to indicate whether he or she agrees with the divorce or not. Although it is less usual for a divorce to be contested, it does happen (as in the case of Owens v Owens, referred to above). In this case, there will be a court hearing to establish whether the irretrievable breakdown of the relationship has been proved.

Decree Nisi

Assuming that the divorce is ‘uncontested’ – that is that the respondent returns the acknowledgement of service accepting the divorce, a decree nisi will be issued if the court agrees that the reasons for divorce have been proved. This is a reminder that filling out the divorce petition is more than a ‘tick box’ exercise – even if you both agree to the divorce, the reason for the irretrievable breakdown must be made out. This is particularly important if you are relying on unreasonable behaviour in order to avoid waiting for 2 years (or 5 years) for the divorce. If unreasonable behaviour is what you will be basing your divorce on, it’s worth getting the advice of the best divorce solicitors you can find to make sure you get it right.

Decree Absolute

This is the final stage of the legal process of divorce. 6 weeks after you have received the decree nisi you can apply for the decree absolute to make the divorce final.

The legal process of splitting up can take a matter of months – but bear in mind that arrangements relating to finances and to care of children can take a lot longer, particularly if you and your former partner fundamentally disagree.

If you are considering a divorce, OTS Solicitors can offer advice and practical support throughout this difficult process. We are members of Resolution, committed to resolving divorce and family disputes as straightforwardly as possible and without the need for protracted court disputes. One of our top family lawyers Behzad Sharmin will be happy to talk to you in confidence about your situation. For more information, please call us on 0203 959 9123.