Divorce/Legal Separation – How it Works

15th November 2023

This blog explores the crucial decisions between divorce and legal separation when couples choose to part ways, discussing the processes, legal grounds, and international considerations. We emphasize the importance of early legal advice to empower informed and strategic decision-making.

Overview 
When a couple decides to separate, understanding whether it's permanent and choosing between divorce or legal separation is crucial. Seeking early advice from a family law specialist empowers informed decisions. This blog discusses the timing and grounds for divorce, contesting divorce, starting the application process, finalising divorce, international considerations, and the option of judicial separation. For tailored guidance, a consultation with a family law solicitor is recommended.

When a couple decide to separate consideration should turn to whether the separation is permanent, and if so, should there be a divorce or legal separation? Obtaining advice from a family law specialist early in the process is vital so that you can understand the options available to you and make an informed decision.

When can a couple divorce?

An application for a divorce can be made at any time after the expiration of the period of one year from the date of the marriage with a minimum period of 20 weeks between the start of proceedings and application for conditional order, which will provide couples with a meaningful period of reflection and the chance to reconsider.

What are the grounds for divorce?

Since April 2022 the only grounds for divorce is the irretrievable breakdown of  marriage, meaning either one or both spouses (jointly) can apply for divorce without apportioning blame.

Can I contest a divorce?

It is no longer possible to contest a divorce or civil partnership dissolution if your spouse applied on or after April 6th 2022 apart from exceptional legal criteria including :

  • Jurisdiction – if you of your partner live in another country, the courts in England and Wales may not be handle your application.
  • If you can prove that the marriage or civil partnership was never valid. For example, if the marriage/civil partnership was not conducted in accordance with the laws of the country in which you married, meaning you did not enter into a legally legitimate marriage/civil partnership.
  • If the marriage/civil partnership has already legally ended. For example, if you’ve already gone through divorce proceedings in another country.

If any of the reasons for contesting a divorce apply, you will need to file a response to the application explaining your reason for contesting the application.  We would strongly recommend you seek legal advice from an expert family law solicitor.

How to begin the application

The divorce is begun by a Petition to the court. If only one spouse has made the application, the court will subsequently send it to the other party and they are asked to acknowledge receipt by completing an Acknowledgement of Service form. If they do not complete and return the Acknowledgement of Service form, then consideration will need to be given to personally serving the petition using a Process Server or Bailiff.

After 20 weeks from the start of the proceedings the applicant or applicants may confirm to the court that they wish to continue the process.  The court will then make a conditional divorce order (Decree Nisi). 

How long after Decree Nisi will my divorce be finalised?

After a period of 6 weeks have elapsed from the conditional order, the court may make a final divorce order on application by the party that issued the Petition.  However, many people do not apply for the final divorce order until financial matters have been resolved, as this may be detrimental in some cases.

Can I apply for divorce in a different country?

Some people have a choice of countries where they could obtain a divorce and different countries adopt different approaches. It can therefore be very important to seek specialist advice about where the divorce should be issued. In some cases, it could be very detrimental to delay in obtaining advice as the divorce will continue in whichever country the petition was lodged. So, for example, if your partner is German and you want a divorce in the UK it is important to issue a petition quickly.

Separation

A judicial separation is a legal separation via the courts. This requires a separation petition to be lodged with the court. However, unlike with divorce, there is no final divorce order so parties will simply remain married.

It is very unusual to obtain a judicial separation nowadays because there is usually no detriment or stigma to divorce. Most people believe that if the marriage has broken to the extent they require a separation they may as well instigate divorce proceedings.

If you would like free, no obligation advice regarding divorce in Sheffield call us on 0114 5517555 or apply online to arrange a 30 minute consultation with an expert family law solicitor.

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