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12th March, 2020
Laura Clay-Harris explores one of the more frequently asked questions when embarking on a divorce.
There is no fixed timescale for a divorce, and it will differ from couple to couple, depending on their instructions, and other factors such as resolving the financial issues and the court used for issuing proceedings. There are ways you can help assist the process moving forward. It can be difficult to come to the decision to proceed with a divorce, and not everyone will want to rush the process. You may want to consider attending marriage counselling, or individual counselling before making the decision to divorce, although this is not appropriate in all cases.
The first step is to file a divorce petition with the court. In England and Wales, you can only divorce on the grounds that the marriage has irretrievably broken down. This has to be supported by one of five facts:
1. Two years separation with consent
2. Five years separation without consent
4. Unreasonable behaviour
A divorce is not automatically granted and you do have to prove to the court that one of the above five facts applies to you. If you do not prove this, your petition can be rejected by the court.
In order to file this petition, you should provide the court with your original marriage certificate. It is possible to apply without the original, but a separate application is needed and this can delay your petition being processed. If you want to move forward as quickly as possible, ensure you have your marriage certificate to hand to provide to your solicitor. If you don’t have the original, you can request a further copy from the General Register Office. It may be possible to petition for divorce using the online service without your original marriage certificate.
Similarly, if you are looking to progress the divorce quickly, you should have all the relevant information ready to provide to your solicitor. This should include the address of your spouse. If they refuse to disclose this, or you have no communication with them, it will be necessary and you may need to instruct a private investigator to obtain the address which will take time for you to prove you have made every effort to trace your spouse and serve the paperwork.
In accordance with the Family Law Protocol, the petition should be sent to your spouse at least a week prior to it being filed with the court. It may be appropriate for a petition to be filed without warning, but only in narrow circumstances, and this may have repercussions later in proceedings.
Once your petition has been filed with the court, they will issue a copy of this to your spouse, who will then be referred to as the Respondent. The petition will be accompanied by an Acknowledgement of Service, a form for the Respondent to complete to confirm they have received the petition and seeking confirmation of whether they intend to contest the proceedings. Currently, the courts are taking between three and five weeks to issue petitions.
The Acknowledgement of Service should be returned by the Respondent within 7 working days of receipt. If not, the Petitioner (the person who filed the petition at court) can request a process server serve the Respondent, and you can advance proceedings without the Respondent’s consent. This process is not suitable for the petitions based on the facts of adultery or two years separation with consent. The Respondent may reply to this faster if they have been given the opportunity to consider the petition first (by receiving a draft). If this is the first time they have seen the petition, they may delay filing the Acknowledgment of Service to obtain legal advice.
Once the court has received the Acknowledgement of Service from the Respondent, a copy will be sent to the Petitioner. Assuming the petition is not contested, the Petitioner can then apply for Decree Nisi, the interim stage of divorce and first decree. If the court approve the petition, they will issue both parties with confirmation they are listing the Decree Nisi to be pronounced. The pronouncement of Decree Nisi is currently taking between six to 10 weeks from the application.
Following the Decree Nisi, the court requires the Petitioner to wait six weeks and one day before making the application for Decree Absolute unless there are exceptional circumstances. Upon the Decree Absolute being pronounced, the marriage is dissolved. The court usually pronounce Decrees Absolute quickly, around one to two weeks after the application is made.
In total, the timescale for a divorce from petitioning to Decree Absolute is approximately six months. However, this timescale is variable depending on your solicitor, the delays the court where you issued the petition is experiencing and crucially, the response time of both parties. If you want to assist in progressing the matter, the quicker you are able to reply and provide information, the quicker the divorce will progress!
Please bear in mind these points before you rush into your divorce:
1. This timetable should run alongside resolving the issue of finances, which are addressed separately to the divorce proceedings. If it is necessary to enter into extensive negotiations, or attend court to deal with finances, may be advisable to delay your application for Decree Absolute. Always seek advice about the financial issues before progressing with a divorce.
2. It can be tempting to use the online divorce service to get the divorce underway as fast as possible. Always seek advice before filing a petition as, if completed incorrectly, remedying this can take time and increase costs.
3. Dissolving your marriage and receiving your Decree Absolute does not provide you with a financial clean break from your spouse. Be sure to take advice concerning financial claims and entitlements.
If you have any questions about divorce and would like to discuss this, or any other family issue, please contact one of our Family Team.
Please find our useful divorce procedure flow chart here.
The court timetable for processing applications changes daily. This timescale is therefore subject to change and will depend on the court you use.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.