Filing the Divorce Petition
This step is the request to the court to start the divorce. The petition is the formal document that applies for the divorce and contains amongst other things the details of both parties and the reason for seeking the divorce. There is only one ground for divorce and that is that your marriage has broken down irretrievably but it needs to be supported by one of five ‘facts’ which are often called the Grounds for Divorce.
The person applying for the divorce is referred to as the Petitioner. The other spouse is referred to as the Respondent. If there is a third party because the divorce is based on adultery they are referred to as a Co-Respondent. Many people wish to name a co-respondent in a petition based on adultery but it is not generally sensible to do so. This is because that third party then formally becomes a party to the divorce proceedings. Naming a co-respondent potentially makes it much easier for your spouse, should they choose to try to defend the divorce or prolong the divorce proceedings. If a divorce is based on adultery, then the adultery has to be ‘proved’ to the satisfaction of the court. Usually this simply means that the Respondent has admitted the adultery or does not seek to defend the divorce petition but if they are not admitting it and the co-respondent also assert that there has been no adultery then it may be more difficult to obtain a divorce on this ground simply because there are two people challenging the evidence. It is common practice therefore to ask the Respondent if they will admit to adultery before the divorce proceedings are issued and also to not name a third party in divorce proceedings.
It is good practice to send a copy of the divorce petition to the other party to see if the details can be agreed before sending it to the court to issue the divorce proceedings so as to try to avoid a defended divorce. The divorce petition is then sent together with the original marriage certificate and the Court fee, currently £550, to the Court to start the divorce process.
Service of the Petition
The Court checks the documentation and, if they are satisfied that it complies with all the requirements, they officially ‘issue’ the divorce petition. They will then send a copy of the divorce petition in the post to the Respondent, together with a form for the Respondent to complete and return to the Court. This form is known as the Acknowledgement of Service form.
Acknowledging Service of the Petition
The Respondent is required to return the Acknowledgment of Service form to the Court within 7 days of receipt of the divorce papers, or longer if the court specifies a longer period, indicating whether or not they wish to dispute the divorce proceedings. If they do want to dispute the divorce they have to file another form called an ‘Answer’ within 28 days of receiving the Petition.
In the event the Respondent fails to return their acknowledgement form, it will be necessary to consider personal service of the papers by either the Court Bailiff or a private process server, in many cases proving that the Respondent has received the divorce papers, by providing the Court with a sworn statement from a process server or the Court bailiff will be sufficient for the court to progress with the divorce even if the Respondent chooses to take no part in the process.
If the Respondent does not respond to the petition, it will be important to make a note of any admissions by them that they have received it, i.e. text messages or emails that state they have received and read the divorce petition or any reference in correspondence to the content of the divorce petition. This may be sufficient for a statement to be provided to the court showing that the Respondent clearly has knowledge of the divorce proceedings but has chosen not to reply and for the court to allow the divorce to proceed without the Acknowledgement of Service being received.
Confirming the Facts in your Petition
When the Acknowledgement form is received by the Court (assuming it is returned by the Respondent) the Court will send a sealed copy to the Petitioner or their legal representative, who must then prepare a short written statement confirming the facts in the original Petition are true and that there have been no changes since the petition was signed. This statement is sent to the Court with the sealed Acknowledgement of Service attached and an application to continue with the divorce process; the application for Decree Nisi.
Pronouncement of Decree Nisi
The Court office will then submit the file of papers to a Judge for consideration. If the Judge is happy with all the documentation and the reasons for the divorce then he or she will sign the necessary form to approve the divorce and the Court will set a date on which the first of the two decrees of divorce, the Decree Nisi, will be pronounced in Court. If the Judge is not satisfied that the grounds for divorce are made out, then further questions may be asked by the Judge to allow the Petitioner to add further information or to apply to change the petition. It is not usually necessary for the parties to attend Court to hear the Decree Nisi being pronounced, the Judge will simply read out the list of names of the parties to the divorce in the court and ‘pronounce’ the Decree Nisi. If however there is a dispute in relation to the costs of the divorce, then the Court may require the parties to attend at the hearing to make representations to the Judge. Decree Nisi is only the first stage of the divorce and it is just confirmation that the Judge is satisfied there are grounds for a divorce, the parties remain married until the Decree Absolute is granted and in many cases, where there are outstanding financial issues to be resolved, the Decree Absolute will come much later once there has been a financial settlement reached by agreement or ordered by the court.
Application for the Decree Absolute
Six weeks and one day after the Decree Nisi is pronounced, the Petitioner can apply for the second and final decree, the Decree Absolute. Once this has been granted by the Court, the parties are officially divorced.
If the Petitioner fails to apply for the Decree Absolute after six weeks and one day, then the Respondent can apply 3 months after that date, but it is usually preferable for both parties for the Decree not to be made absolute until financial issues are resolved, because there are certain potential benefits such as life insurance, death in service benefits and widow’s or widower’s pensions which can be lost on divorce.