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.
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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
What are the grounds for divorce?
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.
It should be noted that there can only be a defence to a divorce in limited circumstances, which should be discussed with a legal professional.
After 20 weeks from the start of the proceedings the applicant or applicants may confirm to the court that they wish the divorce suit to continue. The court will then make a conditional divorce order (Decree Nisi).
Thereafter, 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 there can sometimes be detriment to applying for the order until financial settlement has been agreed.
Who Should Be The Petitioner?
The advantage of being petitioner is that you are in control of the process, but your solicitor has to do the majority of work. Therefore, the divorce can be more expensive; however, it is sometimes possible to claim costs from the respondent. The exception to this is no-fault divorces where no claim for costs can be made. Most people agree to divide the divorce costs between them.
There is usually no detriment to agreeing to be the respondent. In the vast majority of cases who divorces whom and on what basis has no impact on the other important issues such as the financial arrangements or the arrangements for any children of the marriage.
If one party does not live in England or Wales there may be issues regarding whether you can obtain a divorce in this country.
In addition, 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.
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, please complete the accompanying form or call us on 0114 5517555 to arrange a 30 minute consultation.
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