Divorce

Preparing for a legal and emotional process

It is only possible to divorce after 12 months of marriage and only if the marriage has irretrievably broken down. There are five different ways to prove the 'irretrievable breakdown':

(a) Your spouse has 'committed adultery' and you would find it intolerable to carry on living with them; or

(b) Your spouse has behaved in such a way that you cannot reasonably be expected to go on living with them; or

(c) You and your spouse have lived apart for two years, and your spouse agrees to a divorce; or

(d) You and your spouse have lived apart for five years or more; or

(e) Your spouse has deserted you for two years or more.
Applying for divorce

Before you apply for divorce you should be certain that your relationship has really come to an end and that there is no chance of reconciliation.

You apply for a divorce by completing a 'petition'. In the petition you specify the reason for the irretrievable breakdown of the marriage and give details in support of it. Often, it is a good idea to inform your partner about your intention to issue for divorce and to agree, as far as possible, on the contents of the petition. If your spouse receives a divorce petition 'out of the blue' without any prior warning and with upsetting contents, this can have a fatal effect.

Remember, you and your spouse will probably still have to sort out your finances and arrangements for children, if there are any. Dealing with these issues is difficult anyway, but a 'bad' and hostile start to the divorce proceedings might complicate matters unnecessarily by intensifying existing acrimony. There are cases, however, where early notice is inadvisable, for example, if there is history of violence.

Seeking legal advice

You should seek legal advice before you issue a divorce petition and discuss with your solicitor the respective advantages and disadvantage of informing your spouse of your intention to divorce in advance.

The divorce procedure has two stages. First, the court has to be satisfied that the irretrievable breakdown of the marriage has been proven. If it is satisfied of this, the court will grant an order known as the ‘decree nisi’. This is a preliminary order which does not end the marriage. Thereafter, you will have to wait six weeks and one day before you can proceed to the second stage, where you apply for a ‘decree absolute’. This is the final order which ends the marriage. The time-gap is intended to give both parties a chance to reflect and make sure that they really want to divorce. Once you have the decree absolute and the marriage is finally at an end, you are free to remarry. If there are no complications, you should be able to receive a 'decree absolute' in approximately four to six months from the date on which you issue the petition.

Separation

You can separate from your spouse without divorcing. Some people object to divorce for various reasons. A court may grant a 'decree of separation' instead of a decree absolute if the couple asks for it. The same factors that are necessary for a divorce are required for the granting of a decree of separation, except that there is no need to prove that the marriage has broken down irretrievably. A decree of separation means that the spouses are not obliged to continue living with one another. However, they remain married to each other and cannot marry anyone else.

If you require any further information about the services that we provide or would like to review your financial planning position, please contact us

Legal Articles