Civil partnerships v marriage – is divorce the same?
We have explored the differences between marriage and civil partnership. But how do you go about bringing such a relationship to an end?
We have explored the differences between marriage/equal marriage and civil partnership. But how do you go about bringing such a relationship to an end if it has broken down?
The grounds for divorce/dissolution under English Law
Provided that the parties can comply with rules confirming that England and Wales have jurisdiction to resolve the proceedings:
- The marriage/partnership must be at least 1 year in length before proceedings can be brought. Sometimes it is possible to nullify a marriage/partnership, but that is outside the scope of this discussion.
- It must be proved that the marriage/partnership has irretrievably broken down.
- Unless parties have been separated for at least 2 years, it is necessary to allege the fault of the other party.
- The person who files for divorce (called the Petitioner) needs to show that the marriage has irretrievably broken down by proving one or more of the following facts:
- The other person has committed adultery (this does not apply to civil partnership/equal marriage breakdown if with a person of the same sex);
- The other person has behaved unreasonably (and provide a list of examples to the court);
- The parties have lived apart for 2 or more years and the other person consents to the divorce;
- The parties have lived apart for 5 or more years. The other person does not need to consent;
- The other person has deserted the person filing for divorce (divorces based on desertion are very rare).
Is England and Wales the only/best divorce jurisdiction?
Not necessarily. Each case is dependent on its own facts. There may be more than one option.
There are specific rules about divorce jurisdiction in different countries, and issues such as where you are living and nationality may be factors which regulate where you can get divorced. Your rights and obligations following divorce could differ significantly depending on where your divorce takes place. Timing may be vital, so it is essential to discuss with one of our expert family lawyers urgently.
The procedure under English Law
Step 1 — Preparation of divorce/dissolution documents
A 'divorce (or dissolution) petition' will be prepared. This provides the court with the reason(s) why the marriage/partnership has irretrievably broken down. In many cases, the wording of the petition can be agreed in advance between the parties.
The person who starts the proceedings is called the 'Petitioner'. The other person is called the 'Respondent'. The petition is filed at court with a court fee and the original marriage/civil partnership certificate.
Step 2 — Serving the documents on the respondent
The court then sends a copy of the petition and a form, called the Acknowledgment of Service form, to the Respondent. When the Respondent receives the documents he or she is referred to as having been 'served'. In some cases it is necessary to serve the Respondent in a different way and this can be discussed with your family law solicitor.
Step 3 — Filing of acknowledgment of service at court
The Respondent usually has 7 days after receiving the court documents to file the acknowledgment of service at court. This is an official form to complete and sign to show that the Respondent has received the petition and confirm whether she/he intends to defend it. The Respondent completes the answers to the questions on the acknowledgement of service and sends it back to the court.
Step 4 — Application for decree nisi/conditional order
Assuming that the proceedings are not defended, the Petitioner is then able to apply for decree nisi or conditional order. A short statement is required by the court. This is a declaration that the court is satisfied that the Petitioner is entitled to a divorce/dissolution, based on the documents provided.
If the court considers the divorce nisi/conditional order should be made, it will allocate a time and date on which the decree/order will be made or ‘pronounced’ at a court hearing. It is usually unnecessary for either the Petitioner or Respondent to attend this hearing. The court will send a copy of the decree nisi/conditional order to both of your solicitors.
Step 5 — Decree absolute/final order
6 weeks and 1 day from the date of decree nisi/conditional order, the Petitioner can apply for decree absolute or final order, which is the final decree. In some circumstances it may be appropriate to delay making the application until agreement has been reached about finances and children.
If the Petitioner delays applying for more than three months after this date then the Respondent can apply, by asking the court to fix an appointment to consider the matter. This would require an attendance at court. The Petitioner can object to this, but on very limited grounds.
Once the decree absolute/final order has been made by the court, it will send a certificate of decree absolute/the final order to both parties/their solicitors.
Once made, you will be divorced/your civil partnership dissolved. Each of you will be free to re-marry.
Divorce/Dissolution affects inheritance under a will, so it is recommended that you review your will.