What is an undefended divorce?
21st February 2020
Divorce is the legal process to end or dissolve a marriage, which is carried out by the Family courts. The procedure begins with a divorce petition and ends with a decree absolute, which dissolves the marriage. It does not of itself resolve disputes about the marital finances or the children. Those aspects need to be dealt with separately and are explained as part of our further blogs.
Most divorces progress on an undefended basis where the parties accept the marriage has broken down irretrievably.
When can you issue a petition?
You cannot issue a divorce petition unless you have been married for more than one year. If you were married abroad and the marriage ceremony you have undertaken is a recognised and legitimate marriage in that country, then it is regarded as such in this country and you can utilise the divorce process here.
If you wish to be legally separated rather than divorced, you can issue a judicial separation petition within 1 year of marriage.
Do you need the original marriage certificate when filing a divorce petition?
Yes, you will need the original or a certified copy. A copy can be requested from your local registry office for a fee, of usually £10. The certificate will be retained by the court.
If required the court will also need the translation of a marriage certificate plus the original.
What grounds need to be satisfied?
The only ground for divorce is that the marriage has irretrievably broken down. This is proved by establishing the existence of one of five factual circumstances. These are:-
- Your spouse has committed adultery and you find it intolerable to continue to live with him/her.
- Your spouse has behaved in such a way that it would be unreasonable to expect you to continue live with him/her.
- Your spouse has deserted you for a continuous period of two years or more.
- You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
- You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.
It is no longer compulsory in a petition based on adultery to name the third person concerned.
What about children?
The law encourages couples to reach an agreement over future arrangements for their children without the need for a court to become involved. Orders will not, therefore, automatically be made relating to the children as part of the divorce process.
When are financial issues dealt with?
Negotiations in relation to financial arrangements for the future can take place at any time before, during or after the divorce. At times and in certain circumstances, it is advisable not to apply for decree absolute and finalise the divorce proceedings until after a division of the marital finances has been agreed and ordered by the Court (such as when there are pensions and maintenance considerations particularly).
When will I be able to remarry?
Neither party to the marriage is free to remarry until the final decree of divorce has been made (known as the ‘decree absolute’).
How much will this cost?
Solicitor’s costs are currently in the region of £500-£600 plus VAT and plus disbursements for undefended divorce proceedings. The main disbursement is the Court fee which at present is £550 and that has to be paid to the Court when the petition is issued. We are very happy to discuss your individual situation with you and provide you with an exact price based on your specific circumstances, so please do get in touch with us.
What happens during the proceedings?
Bearing in mind on an undefended divorce there is no requirement to attend Court unless divorce costs are in dispute (in which case you may need to attend at decree nisi stage), in the main the majority of divorces proceed on an undefended basis by the parties simply completing the relevant documentation in the following process:
How long will it take?
Dependant upon how busy the Court is and how prompt each party is in completing their part of their documentation, it can take between 7 to 9 months from start to finish. Again, application for decree absolute should sometimes be delayed in any case pending resolution of the division of marital finances.