Divorce is the legal term given to the formal ending of a marriage. Although it is possible to end a relationship by both informal and formal separation, the latter involving a separation agreement, divorce is the formal and final legal route.
Divorce is only available as an option to couples who have been married for at least one year. The marriage must be recognised and registered according to UK law. Divorces can be ‘uncontested’, which means that both parties agree to the divorce, or ‘contested’, meaning the parties disagree.
The party to the relationship who applies for a divorce is called the ‘petitioner’ and the other party the ‘respondent’.
If a divorce is uncontested it is possible to complete the divorce without legal representation by a solicitor. In practice, divorce involves complex matters surrounding assets, property and the care of children, so whilst the issue of divorce may not be contested, the issues surrounding these other matters may well require expert legal advice.
If a divorce is contested parties will almost always have legal representation. The rules in England and Wales now mean that most divorcing couples must consider a process called mediation before they can bring a contested divorce case to the family court.
What are grounds for divorce?
Divorce can only take place if you are able to prove a legal basis for the ending of the marriage, and that this basis is permanent and irretrievable. These legal ‘reasons’ are known as ‘grounds for divorce’.
They are controversial, and a recent commission looking at divorce has recommended that these ‘grounds for divorce’ be replaced by a single reason, notably, the irretrievable breakdown of the relationship.
Until the law is changed, however, couples remain in a situation where they must prove ‘fault’ as the basis for divorce, or consider a ‘no fault’ ground for divorce.
The ‘fault’ grounds for divorce are that the other partner committed adultery, that their behaviour has been unreasonable, or that they have deserted you for at least two years. You must seek divorce within six months of discovering the adultery, so will need to give dates and places where the adultery occurred.
The ‘no fault’ grounds for divorce are that you agree to the divorce and you have lived apart for two years, or that you do not agree to the divorce but have lived apart for five years.
How long does a divorce take?
A divorce can be fairly quick but this all depends on the circumstances. In an uncontested divorce with established grounds, a court can grant a ‘decree nisi’ without needing a court hearing. This is a temporary divorce order, that can be made permanent as a ‘decree absolute’ six weeks and one day after the granting of the decree nisi.
The reality is often that divorce is more complex than this, and matters relating to children and property take up considerable time, effort and negotiation. If the divorce is acrimonious these negotiations can take months or even years.
Similarly if the ground for divorce is simply separation, and the parties do not agree to the divorce in principle, the petitioner may be made to wait five years just to establish the grounds for divorce.