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16/10/2014 By: Jane Booth
The press often refers to so-called “quickie” divorces and websites are even marketing themselves as being set up to provide them. There is, however, no such thing as a “quickie” divorce. The process is the same for all undefended divorces in England and Wales.
All divorce proceedings have to be issued at court with the party asking for the divorce (the Petitioner) saying that their marriage has irretrievably broken down on the basis of one of five grounds - adultery, unreasonable behaviour, two years’ separation with the consent of the other person, desertion for 2 years (very rarely used) or five years’ separation (which doesn’t require the other person’s consent).
The most commonly relied upon basis remains the unreasonable behaviour of the other spouse (the Respondent) and, typically, a petition will provide a number of examples of the behaviour in question.
It is good practice to provide the Respondent with a draft of the proposed allegations before starting the proceedings. This can help to keep the temperature down by allowing an opportunity to remove any allegations that might be particularly contested or upsetting or that might otherwise result in the divorce being defended.
Once a petition has been sent to the court it takes on average five to seven working days to process it. It is then sent to the Respondent, who has seven days to file an acknowledgment of service, confirming whether he or she intends to defend the divorce.
Assuming the divorce isn’t going to be contested, the Petitioner can then apply for the pronouncement of decree nisi, the first formal part of the process confirming that the Petitioner has established, to the court’s satisfaction, that the marriage has indeed irretrievably broken down. It will usually take between two and three months (courts vary depending on how busy they get) to get to the Decree Nisi stage. Decree Nisi is pronounced in an “open court” hearing, which means technically it’s open to the public although unless you’re a celebrity it’s highly unlikely that anyone will be monitoring it. Unless there’s an argument about who pays the costs of the divorce there is no need for either the Petitioner or the Respondent to attend and even if costs are an issue it can often be dealt with by written representations rather than turning up in person.
Journalists often wrongly report the pronouncement of Decree Nisi as the granting of the “quickie” divorce. However, unless there are certain exceptional circumstances the Petitioner must wait at least a further six weeks and one day (a “cooling off” period) before applying for Decree Absolute. Decree Absolute is the second and final formal stage in the divorce process and brings the marriage to an end.
There are some urgent situations where the whole process can be shortened, but these are few and far between. The vast majority of people will go through the process I’ve described and in those kinds of timescales.
Divorce and Finances
In practice, the divorce process itself is rarely the most difficult aspect to sort out. Most of the time, far more time and money is spent dealing with financial matters or, indeed, any issues that may arise in relation to the future arrangements for any children.
It is common to hold any application for Decree Absolute back until there is a financial order in place (whether that’s by agreement or after a decision imposed by a court). The main reason for this is to keep alive possible claims to a pension if one of the couple dies. There are specific rules that deal with when the decision to hold back the final divorce decree can be forced on someone against their wishes.
Potential Changes to Come – Ending the Blame Game
For years, family law professional in all areas have been calling for a change to the current “fault based” divorce process, and there seems to be some momentum building for it. The President of the Family Division queried, in April, whether the time had come “to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievably breakdown as the sole ground” and “whether the process of divorce still needs to be subject to judicial supervision”. Whether whatever Government we get next year is sufficiently motivated, however, to see through the legislative amendments required to effect the sort of change sought, remains to be seen. Past experience suggest we could still be waiting a long time.
Jane BoothFamily Law Solicitorfor Mills & Reeve LLP