Divorce: answers to the most commonly asked questions

30 Jun 2021

Divorce is a difficult and challenging process for individuals and families. Most people will undertake some basic research of their own before talking to a solicitor for the first time, or they will talk to friends who have been through a divorce themselves.
 
However, there is a lot of misinformation surrounding divorce when you look online, and the people that have been there and done it may well offer a jaundiced view of the process.

So let’s separate the fact from the fiction:

Question 1 – Do I need to be separated for two years before issuing divorce proceedings?
 
The only bar to issuing divorce proceedings is if you are in the first year of marriage. You do not need to be separated for a certain period, or even separated at all, before issuing divorce proceedings. 
 
Question 2 – If I issue proceedings based on my spouse’s adultery, do I need to name the third party?
 
In fact it’s actively discouraged. If you do name a third party, they will be served with all the divorce paperwork, some of which contains very personal information that you might prefer to keep confidential. It can also slow the process down and increase animosity.

Question 3 – Can I obtain a ‘quickie divorce’?

There’s no such thing. Every undefended divorce is subject to the same process and court time constraints, and will generally take between six and eight months. It can take much longer if financial arrangements have to be resolved. Any media outlet referring to a celebrity divorce being pronounced in minutes is just that – the pronouncement of the decree nisi, which confirms that the court is satisfied that a person has met the legal and procedural requirements to obtain a divorce. A marriage isn’t actually dissolved until the decree absolute is pronounced, generally at least six weeks and one day later.

Question 4 – Will the content of the divorce petition impact on the financial settlement?

The court will consider several factors when deciding on financial matters and an individual’s misconduct – as presented in the petition – is only very occasionally taken into account.
 
Question 5 – Will I need to attend court?

This is not always necessary. Unless the divorce is defended or there is an issue over who will pay the costs of the divorce, neither party will need to attend court and the process is dealt with on paper by the judge. If there are separate proceedings relating to finance or children, then you are likely to need to attend court in respect of those proceedings.

Question 6 – If I start a relationship after the separation has begun is this classed as adultery?

As long as you remain married, a new relationship that started after your separation will still be regarded as adultery and your spouse could issue proceedings against you on this basis.

Question 7 – No-one’s to blame so can we just agree to divorce and get on with it?

Not yet. New legislation in 2022 will enshrine the concept of ‘no fault’ divorce into law, allowing a couple to mutually cite ‘irretrievable breakdown’ as the sole ground for wanting to obtain a divorce. For now, the current divorce system requires one spouse (the petitioner) to initiate the process of filing for divorce by making an accusation about the other spouse’s (the respondent) conduct (adultery, unreasonable behaviour or desertion). If one of these three reasons cannot be proven, the alternative is a two or five year ‘separation’ period before the marriage can be legally dissolved.

Should you wish to discuss any family law issue, please don’t hesitate to contact our Family law team.

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