Law and divorce in UK

A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

• Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)
• Cruelty has been made irrelevant. See Gollins v Gollins [1964] A.C. 644
• Family Law Act 1996
• Children Act 1989
• Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991
• Marriage Act 1949
• Marriage Act 1994
• Gender Recognition Act 2004

Here is a rough outline of the undefended divorce procedure from start to finish:

1. Filing of Divorce Petition & if necessary Statement of Arrangements for the Children
2. Documents issued by Court and posted to the Respondent
3. Respondent returns Acknowledgement of Service to the Court (if he/she does not you will need to consider Bailiff Service, Deemed Service or other options)
4. Petitioner completes Affidaviti in Support of Petition and Request for directions
5. A Judge will then consider all the divorce papers and if he/she is satisfied issue a Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)
6. Decree Nisi is granted
7. Six weeks later the application can be made by the Petitioner for the Decree Absolute.

From beginning to end, if everything goes smoothly and Court permitting, it takes around 6 months.

If there are any outstanding financial issues between the parties, most solicitors would advise resolving these by way of a 'Clean Break' Court order prior to obtaining the Decree Absolute.

There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down.

There are however five 'facts' that may constitute this ground. They are:

1. Adultery
   • Often now considered the 'nice' divorce.
   • Respondents admitting to adultery will not be penalised financially or otherwise.
2. Unreasonable behaviour (most common ground for divorce today
   • The petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her.
   • the allegations may be of a serious nature (eg. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life; the courts won't insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce.
3. Two years separation (if both parties consent)
   • both parties must consent
   • the parties must have lived separate lives for at least two years prior to the presentation of the petition
   • This can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.
4. Two years desertion
5. Five years separation (if only one party consents)

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