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3 Divorce and Separation

pdf icon Download Divorce and Separation (PDF File, 381kb)

1. Introduction

2. Where to start

3. Separation

4. Divorce

What do we need to get a divorce?
You have to have been married for at least a year before you apply to the court for a divorce. To get the divorce you have to show the court that the marriage has broken down 'irretrievably' (that is, one or both of you feel that you cannot stay married to each other). You do this by citing (using) one of five 'facts'. Married couples can use any of the facts, and civil partners can use any except fact A.

A. Your husband or wife has committed adultery and you find it intolerable to live with him or her.
Generally, you prove adultery by your husband or wife admitting it. If he or she refuses to co-operate, you will need to speak to your solicitor about what to do next. If you carry on living with your husband or wife for more than six months after you find out about the adultery, you will generally not be able to use this as your 'fact'.

B. Your partner has behaved in such a way that you cannot reasonably be expected to live with him or her.
This covers all sorts of bad behaviour, including if your partner has an 'improper' relationship with someone else that makes you feel they have been unfaithful to you. Civil partners could use this instead of fact A.

You need to think about the main things that have made your partner difficult to live with. These are summed up in the petition (the document that sets out the reason for the divorce) in a few short paragraphs. You cannot rely on single events that took place more than six months before you file (send in) your petition if you have lived together for more than six months since then.

C. Your partner has deserted you for a period of more than two years.
Desertion means leaving your partner without his or her agreement and without a good reason. Using this as a 'fact' is rare these days..

D. You have lived separately for more than two years and your partner consents to the divorce.
This is often called 'no-fault' divorce. You can have had periods of living together as long as they do not add up to more than six months, and you have been apart for at least two years altogether. You need your partner’s written consent to use this as your 'fact', so you must make sure you have their agreement before the proceedings start, otherwise the divorce may fail.

E. You have lived separately for more than five years.
Your partner does not need to agree to this. They cannot defend this petition, but they can ask the court not to grant the final decree because of major financial or other type of hardship.

Facts A and B are the most commonly used ones, because with all the others you need to have lived apart for more than two years. If you want to file a petition based on your partner’s behaviour or adultery, it makes sense to discuss this with him or her first if you can – unless, for example, you are afraid of how they may react. If you can discuss the matter, it means you can make sure your partner will not defend the petition (argue against you), and this will save you legal costs

Do I have to go to court?
If the divorce is undefended (that is, you both agree to it), there is no need for either of you to go to court. The case can all be dealt with on paper.

How long does it take?
Most divorces take six to eight months from the first step (filing the petition) to when divorce is official (the ‘final decree’ is granted). The time can vary, depending how quickly you and your husband or wife (or civil partner) deal with the paperwork, and whether you know where they are.

Sorting out the money can take much longer than this. You can get your final decree and be free to remarry without having sorted out a financial settlement., but it is normally better to conclude the divorce first.

5. If you have children

6. Supporting your children

7. Money and property

8. Making arrangements should you die

9. Dealing with emergencies

10. Terms used in divorce and family law

11. Further Help

12. About this leaflet

This leaflet is published by the Gurkha Free Legal Advice (LSC). It was written in association with Imogen Clout, a solicitor and mediator specialising in family law.

Leaflet version: May 2009

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