Application for a Matrimonial Order (formerly called Divorce Petition)
There is one ground for divorce – that your marriage has irretrievably broken down. This can be proved in one of five ways. These are as follows:
- Your spouse has committed adultery and you find it intolerable to continue to live with him or her;
- Your spouse has behaved in such a way that it is unreasonable to expect you to continue to live with him or her;
- You have been separated from your spouse for two years and your spouse consents to the divorce;
- You have been separated from your spouse for five years (whether or not your spouse consents to a divorce);
- Your spouse has deserted you for a period of two years.
You will have discussed with me at your first interview which is appropriate in your case.
A divorce is started by one of the parties to the marriage presenting a Divorce Petition to the local County Court. The spouse who starts the proceedings is called the Petitioner and the other party is called the Respondent.
Once you decide you want to start divorce proceedings, I will draw up the necessary documents for starting the divorce proceedings. The main document is the Divorce Petition. This sets out the reason why you want a divorce. I will need to see your Marriage Certificate in order to draw up this document. If there are any children under the age of eighteen, then a Statement of Arrangements for Children will also need to be drafted. This sets out the details of where the children are to live, who is to look after them, etc.
When these documents have been drafted, they will be sent to you for your approval. I will sign the Petition on your behalf once you have approved it but you must sign the Statement of Arrangements for Children.
The Divorce Petition and Statement of Arrangements for Children, if appropriate, will then be filed at the Court together with your Marriage Certificate and either the appropriate fee, which is currently £340, or a Certificate exempting you from payment of the Court fee if you are in receipt of Income Support, Income Based Jobseeker’s Allowance, or have a very low income. The Court will issue the Divorce Petition and send a copy of it, together with a copy of any Statement of Arrangements for Children, to your spouse. Your spouse will also be sent a form on which he or she has to acknowledge service (receipt) of the Divorce Petition and say whether he or she intends to defend the proceedings. I will notify you when the Petition has been issued.
The next step is for your spouse to complete the Acknowledgement of Service form and return it to the Court. If your spouse indicates that he or she intends to defend the divorce proceedings then you will need to discuss the procedure in detail with me. These notes assume that your spouse indicates that he or she does not intend to defend the divorce.
If your spouse fails to return the Acknowledgement of Service to the Court then it will be necessary to arrange an alternative form of service of the Divorce Petition. This means that I will either have to instruct the Court Bailiffs to serve the Petition personally or alternatively that we will have to arrange for a Process Server to serve the Petition. Again, if this becomes necessary, we will need to discuss this further.
Once your spouse has returned the Acknowledgement of Service of the Divorce Petition to the Court, the Court will send a copy to me. I will then prepare your Affidavit in support of the Petition. This is a sworn statement confirming that the information you have given in the Divorce Petition is true.
The Affidavit is then sent to the Court together with a Request for the case to be considered. All the paperwork is put before a Judge for him to consider whether a divorce should be granted and to consider the arrangements for any child(ren). If the Judge is satisfied that you are entitled to a divorce, he will issue a Certificate and the case will be listed for the Decree Nisi. The Decree Nisi is the provisional divorce order.
The hearing for the Decree Nisi is usually listed for hearing about three to four weeks after the Affidavit is returned to the Court, depending on how busy the Court is at the time. At this point, the Court will also indicate if it is satisfied with the arrangements for the child(ren).
You do not need to attend the Decree Nisi hearing unless the Court has indicated that you should do so because there is a dispute over who should pay the costs of the divorce.
Once the Decree Nisi has been pronounced I will send you a copy of the Decree Nisi Certificate. This is the first part of the divorce. Once you have received the Decree Nisi, you must wait for six weeks before applying for the Decree Absolute.
You will remain married until the Decree Nisi has been made Absolute. Until then, you will be entitled to any widows or widowers pension should your spouse die before Decree Absolute and you cannot remarry until after the Absolute.
To obtain the Decree Absolute, a further application form is sent to the Court together with a further Court fee of £45. I will forward the Decree Absolute to you as soon as I receive it from the Court. The Decree Absolute is the final part of the divorce. You are not free to remarry until you have obtained the Decree Absolute.
It is important that you retain the Decree Absolute Certificate as you will need it if you ever wish to prove in the future that you are no longer married.
Sometimes, it is advisable not to apply for the Decree Absolute at the earliest opportunity. There may be reasons why it is better to wait to apply for the Decree Absolute until the financial disputes in the divorce have been resolved. I will advise you about this further at the appropriate time.
It usually takes about four to five months to obtain a divorce, depending on how quickly each party returns the various forms to the Court and depending on how busy the Court is.
You can stop the proceedings at any time if you wish, right up until you have obtained the Decree Absolute, so if you have reconciliation with your spouse you should let me know immediately.