Guide to getting a Divorce
Getting a divorce is a stressful time and not knowing the procedure only adds to this stress. This article will help you understand your options however if you feel you need more guidance, you can book in a consultation with one of our divorce solicitors.
Grounds for divorce
You cannot apply for a divorce until you have been married for at least one year. A divorce will be granted by the court if either party can show that the marriage no longer exists on a permanent basis. This is called an irretrievable breakdown of the marriage. For the marriage to have irretrievably broken down, one of the following grounds must be proved:-
- Adultery
- Your partner has behaved unreasonably (this could include physical violence, verbal abuse, drunkenness, refusing to pay housekeeping etc)
- Desertion (your partner has deserted you for more than 2 years
- You have lived apart for at least 2 years (if you both agree to a divorce)
- You have lived apart for at least 5 years (if one of you does not agree to a divorce)
Filing a Divorce Petition
To start a divorce you must complete a divorce petition and send this to the court with the original marriage certificate. A fee is payable for filing the divorce petition at the court of £410. If there are children of the marriage aged 16 or under or children aged under 18 at school, college or on a training course a Statement of Arrangements must also be completed and sent to the court at the same time. You will need to include details of arrangements for: –
- Childcare
- Maintenance
- Contact with your children
The court will not let you divorce until you can show you have adequately arranged these things.
What happens next
After the divorce petition has been filed at court, the court will then issue a notice of proceedings form and an acknowledgement of service form. These will be sent to the Respondent (the person whom the divorce proceedings are being brought against). If the Respondent agrees with the divorce petition (as is normally the case) they must complete and return the acknowledgement of service form to the court within 8 days and the divorce will go ahead.
In the unusual event of the Respondent not agreeing with the divorce petition, it becomes a contested divorce. Contested divorces are rare and extremely complicated. They are also very expensive and because of the expense many initially defended divorces either become agreed divorces or are withdrawn.
When the Respondent does not agree with the divorce petition, they must complete the acknowledgement of service within 8 days and fill in the part which says they are defending the divorce. The Respondent then has 21 days to say why he/she is defending the divorce. When a divorce is defended the court will usually hold a hearing to discuss the case and both parties will have to attend the hearing to try to come to an agreement over the divorce. Judges, barristers and solicitors all do their best to persuade warring spouses to come to an agreement rather than go through an expensive contested divorce hearing.
The decree nisi and decree absolute
A decree nisi can be applied for if the Respondent does not defend the divorce. The decree nisi is a document which says that the court does not see any reason why you cannot divorce. If your husband or wife does not agree to the divorce, a decree nisi can still be applied for but you will have to attend court for a hearing to discuss the case and a Judge will decide whether to grant a decree nisi or not.
After 6 weeks of the decree nisi being granted, you can apply for a decree absolute. The Petitioner has to pay a fee of £45 when they apply. The decree absolute is the document which ends your marriage. Each party will be sent a copy of the decree absolute which means you are divorced and free to marry again if you wish.
Paying for Divorce
If you have difficulty paying a court fee, a system of fee waivers and reductions, known as the remission system, is available. The fee remission system allows access to court services free of charge (a full remission) or at a reduced rate (a partial remission). The fee remission system is based on two different tests. You will have to pass both tests in order to be eligible for a fee remission.
We offer a fixed fee of £750 + VAT to deal with the divorce for you from start to finish. This is for a straight forward divorce with no complications or additional applications being required, such as deemed service or personal service i.e. the other party accepts and engages with the divorce.
There is a court fee of £593 that would need to be paid to the court directly when issuing your petition. Depending on your financial situation, you may be entitled to a fees exemption or reduction in court fee.
How long a Divorce take?
The divorce will take 26 weeks to complete from the date your petition is issued.
There will be a 20 week ‘holding period’ which is before you can apply for your conditional order stage. This is to give you both some time for reflection and be sure a divorce is definitely what you want to achieve.
Once the 20 weeks have passed and the conditional order has been granted, there must then be a further 6 weeks and 1 day before the final order can be applied for.
The Disposable Capital Test
The disposable capital test assesses your household disposable capital (for example your savings and investments). If you have disposable capital equal to or more than the thresholds shown in the table below you will not be entitled to receive a fee remission unless you have exceptional circumstances.
| Court Fee | Disposable capital threshold |
|---|---|
| Range | Your disposable capital is less than: |
| Up to £1,000 | £3,000 |
| £1,001 – £1,335 | £4,000 |
| £1,336 – £1,665 | £5,000 |
| £1,666 – £2,000 | £6,000 |
| £2,001 – £2,330 | £7,000 |
| £2,331 – £4,000 | £8,000 |
| £4,001 – £5,000 | £10,000 |
| £5,001 – £6,000 | £12,000 |
| £6,001 – £7,000 | £14,000 |
| £7001 or more | £16,000 |
The Gross Monthly Income Test
If you have passed the disposable capital test, this test will consider your gross monthly income (your income before tax and other deductions). You can receive two different types of remission under this test:
Remission 1
You will receive a full remission of a court or tribunal fee if you receive one of the benefits listed below ; or
| Benefit | Evidence letter from | Dated |
|---|---|---|
| Income-based Jobseeker’s Allowance | Job Centre Plus / Department for Work and Pensions (DWP) | No more than one month old |
| Income-related Employment and Support Allowance | Job Centre Plus / Department for Work and Pensions (DWP) | No more than one month old |
| Income support | Job Centre Plus / Department for Work and Pensions (DWP) | No more than one month old |
| Universal Credit – with gross annual earnings of less than £6,000 | Job Centre Plus / Department for Work and Pensions (DWP) | No more than one month old |
| State Pension guarantee credit | The Pension Service / Department for Work and Pensions (DWP) | Assessed Income Period should cover the current financial year |
| Scottish Civil Legal Aid | Scottish Legal Aid Board | Recent letter clearly showing a grant of support for the claim which you are bringing or have brought |
Remission 2
You will receive a full remission if your gross monthly income is below the thresholds shown in the Table 1 below. You might receive a partial remission if your income is below the gross monthly income cap thresholds shown in Table 2 below. If your income is over the gross monthly income cap thresholds, you will not be entitled to receive a fee remission.
TABLE 1
| Gross monthly income with: | Single | Couple |
|---|---|---|
| No children | £1,085 | £1,245 |
| One Child | £1,330 | £1,490 |
| Two Children | £1,575 | £1,735 |
| £245 for each additional child | ||
TABLE 2
| Gross monthly income with: | Single | Couple |
|---|---|---|
| No children | £5,085 | £5,245 |
| One Child | £5,330 | £5,490 |
| Two Children | £5,575 | £5,735 |
| £245 for each additional child | ||
You may also be eligible for Legal Aid Funding. However, from 1st April 2013 changes to Legal Aid Funding for people going through divorce or separation has changed. Under the new rules Legal Aid is now limited to low income applicants (on benefits or means tested) but only if their situation falls into one of the following categories:
- Cases where there has been domestic abuse
- Local authority child protection matters
- Child abduction cases
- Forced marriage cases
If your case falls within one of these categories, you may be eligible for Legal Aid.
