Process of Getting a Divorce
When a marriage ends, the stages and legalities of what both partners have to go through will depend on whether you want to legally dissolve the marriage (by divorcing) or separate informally (by legal separation).
It also depends whether you are splitting up amicably or one of you is disputing the separation. Whatever the reasons for your relationship breakdown, it is likely to be a difficult time for any children that you have together so sorting our their contact arrangements is very important.
If you you are not sure about the meaning of the terms used in this article please refer to this excellent Legal Terms guide from Pinnington Law.
Ending a marriage by getting a divorce
In many cases, you can handle most of the arrangements yourselves without requiring solicitors. To legally end your marriage, you will need to go through the formal divorce process and ask the court to finalise it. But if you’re able to agree everything with your spouse (undefended divorce) you won’t have to attend any court hearings.
You need to consider and agree on the reasons you want to divorce, how you’ll look after children and how you’ll split up money, property and possessions that you have.
If you and your spouse do not agree (defended divorce) the case will normally be heard in the High Court and it is advisable that both partners should consult a solicitor. When the case is heard, you will usually need to use a barrister as well so legal fees can be very high if there are long disputes. Therefore, it is advisable wherever possible for both partners to try to come to an agreement before going to court.
In England and Wales, you can only apply for a divorce if you've been married for at least one year. To get a divorce, you’ll need to go through a number of steps.
The stages of a divorce
The court will grant a divorce if you or your partner can show that the marriage no longer exists on a permanent basis. Legally, this is called an irretrievable breakdown of the marriage if one of the following things must be proved:
- adultery
- your partner has behaved unreasonably
- your partner deserted you at least two years ago
- you've lived apart for at least two years if you both agree to the divorce
- you've lived apart for at least five years if one of you doesn’t agree to the divorce
See Top 5 Causes of Divorce for more information in each area.
Ending a marriage by getting a Legal Separation
You can consider legal separation if you want to split from your spouse but not legally end your marriage. Separation can give you all some space to get used to being apart, and make it easier to decide on divorce agreements.
Legal seperation does not legally end a marriage but instead, you get a decree or order from a court to show that you have legally separated. You are not allowed to remarry because, in legal terms, you are still married but no longer have the same responsibilities to each other. You can ask for a legal separation for the same reasons that you could choose to file for divorce which could include unreasonable behaviour or desertion.
The first step in getting a legal separation is to tell the court that you want to apply for a judicial separation by submitting a separation petition form.
If you can agree on how to divide your finances or property, you can get a legal agreement drawn up to confirm who gets what, this is called a ‘consent order’. If however you can't agree then you can apply for a 'financial order' (or ancillary relief order), this is a formal arrangement made in court.
Separation Agreements
If you have been married and decide to divorce or get a legal separation, you should always think about getting a legal agreement between you which covers splitting money and possessions and any arrangements you make about children. To make the separation agreement a legally binding document, you’ll need to use a solicitor each to make sure that what’s agreed is fair and legal.
If you get a legal agreement in writing, it can avoid disagreements later on , as working out everything when you split up or separate can be complicated. It’s a very good idea to agree as much as you can between you as this will make it easier, faster and cheaper for solicitors. If you and your spouse don’t agree on these issues the process can take much longer as it can also help avoid having to go to court to settle things – now and in the future.
A separation agreement can cover anything that’s relevant when you end your relationship. This can include:
- who your children should live with with and have contact with
- child maintance agreements with your husband or wife
- how you split up your money and possessions
- what you’ll do about property and living arrangements
- what about wills when you divorce
- any other conditions you want to agree, like not annoying or disturbing your former partner
If you’re finding it difficult to agree about how to look after children or split up your property and possessions, then you might have to use either an independent mediator or a solicitor. You can find court addresses in the local telephone directory or on the Ministry of Justice website.
Legal Costs
If both partners are in agreement about a divorce, you may be able to get help with legal costs of the divorce through the Legal Help Scheme. If your partner disagrees with the divorce, you may be able to get help with the legal costs of the divorce under the Legal Representation scheme. Whether or not you are eligble for these schemes depends on your circumstances including, for example, your income and if you are on benefits.
To get legal aid you need to meet certain conditions so use the legal aid calculator to see if you are eligible.
These are only guidelines and each situation is different so if you would like personalised support visit The Family Law Panel