divorce-tamily-law-separation

Separation​ & Divorce

Relationship breakdown, separation & divorce, is sadly more common than everyone would like, but being that it’s a reality in today’s society, having the right information is essential.

How can I end my marriage?

The most common way to end the marriage is through divorce. You must be married for one year prior to the divorce being filed and you must be able to show that the marriage has irretrievably broken down using one of the following facts:

  1. Unreasonable Behaviour – actions that make it impossible to live with the other party e.g. domestic abuse, drug or alcohol addiction or irresponsibility with money.
  2. Adultery – the other party has had sex with another person. Note if you remain living with the party for six months after the adultery occurred this cannot be used as a fact.
  3. Two Years’ Separation – the other party has to agree to this and you and the other party must been living separately for two years.
  4. Desertion – the other party has left the matrimonial home without a good reason or your consent and you have not been living with each other for 2 years out of the last 2.5 years.
  5. Five Years’ Separation – you have been living apart for five years prior to the application being made. Please note that the other party does not need to consent to this.

The person that submits the initial application for the divorce petition is the applicant, and the other party is the respondent.

Are there any alternatives to divorce? 

If you have been married for less than a year or you do not wish to divorce for religious reasons judicial separation may be more suitable. When applying for judicial separation you do not need to show that the marriage or civil partnership has irretrievably broken down, however you can rely on any of the facts listed above. The form for judicial separation is a D8 which comes with a fee of £365, however if you are on a low income or benefits you can submit an EX160 fee exemption to reduce the cost. The court can grant a decree of judicial separation, which means you no longer need to live with the other person. It does not dissolve the marriage or civil partnership, but can later be amended in court to dissolution on the same facts.

The other option is annulment, which legally ends the marriage. An annulment application can be made at any stage from the point you are legally married. However, to get an annulment you must prove that the marriage is either void or voidable.

A marriage would be void if:

  1. one of the parties to the marriage is under 16;
  2. you are closely related; or
  3. One of the parties is already married / in a civil partnership (i.e. bigamy or polygamy).

If your marriage is not legally valid, the court will treat it as if the marriage had never taken place.

A marriage could be voidable if:

  1. it wasn’t consummated – you haven’t had sex with the person you married since the wedding, either through incapacity or wilful refusal (but note that a same-sex spouse cannot rely on lack of consummation to annul their marriage);
  2. you did not consent to the marriage (e.g. duress, forced marriage, mistake, incapacity or otherwise);
  3. one of the parties was suffering from a mental disorder;
  4. the other person had a sexually transmitted disease when you married and you were unaware at the time of marriage;
  5. your wife was pregnant by another man when you married and you were unaware at the time of marriage;
  6. the other person was living as another gender or changed gender outside of the UK and you were unaware at the time of marriage;
  7. Either you or the other person has been issued an interim Gender Recognition Certificate in the past six months (an application for that person to be recognised as the gender they have been living as or have changed to outside of the UK).

If your marriage is voidable, the court will treat the marriage as valid up until the date of annulment.

To start the process of annulling the marriage the applicant would need to submit form D8N which comes with a fee of £550 however if the applicant is on a low income or benefits they can submit an EX160 fee exemption form to reduce the fee. The respondent then has 8 days to respond. If they agree you can submit a D84 application for a Decree Nisi. You must submit a statement in support alongside your D84, which would either be a D80F if the marriage was void or D80G if the marriage was voidable.

Once you have obtained your Decree Nisi you can apply for your Decree Absolute or Decree of Nullity 6 weeks after the Decree Nisi is granted using the form D36.

The process is slightly different for civil partnerships – if you wish to receive advice on this please contact Child Law Advice 

How do you apply for a divorce?

To make an application for divorce the applicant would need to submit the divorce petition form D8 alongside a copy of the marriage certificate to the local Family Court. There is a fee of £550 to make this application, however if the applicant is on a low income or benefits they can submit an EX160 fee exemption form to make the fee more affordable.

Your ex-partner would then have 8 days to respond if they wish to dispute the divorce.

What happens if we both agree?

Your spouse can submit an Acknowledgement of Service on a D10 form and submit that to the court the initial D8 was submitted to. Once you receive a copy of this acknowledgement you are able to submit the form D84 to apply for your Decree Nisi.

What happens if we do not agree?

If the respondent does not agree to end the marriage, they would need to make this clear on the D10 form within eight days. They would then need to submit a D8B explaining why they are defending the divorce. There is a fee of £245 for this; however the EX160 can still be used if they are on a low income.

What is the difference between the decree nisi and the decree absolute?

The decree nisi is an interim order accepting the petition for divorce.  An application for a Decree Nisi can be made using the form D84 as well as the respondent’s response. You must also submit one of the following confirming your grounds for divorce:

  • Adultery’ statement –form D80A
  • ‘Unreasonable Behaviour’ statement – form D80B 
  • ‘Desertion’ statement – form D80C 
  • ‘2 Year Separation’ statement –form D80D 
  • ‘5 year Separation’ statement – form D80E

The Decree Absolute is the final step of the divorce. You can apply for the Decree Absolute 6 weeks and one day after you receive your Decree Nisi using the form D36 which costs £45. If you are the respondent to the application you would need to wait 3 months and one day to apply for the Decree Absolute using the same form, however the fee is £155 – but you can use the EX160 if you are on a low income or benefits. Once the Decree Absolute is made, the divorce is final.

Family Law Advice

For further information please visit https://childlawadvice.org.uk/  and other legal advice and information surrounding Relationship Breakdowns and Parental Disputes as well as areas of Child and Education Law. 

This information is correct at the time of writing (24.04.2018). The law in this area is subject to change. The Dadsnet and Coram Children’s Legal Centre cannot be held responsible if changes to the law outdate this publication. The Dadsnet recommends you seek legal advice before making any decisions or taking any actions. Individuals may print or photocopy information in CCLC publications for their personal use. Professionals, organisations and institutions must obtain permission from the CCLC to print or photocopy our publications in full or in part.

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