How can we divorce in England & Wales and where?
By divorce petition filed at court by one party to the marriage ( ‘the petitioner’) setting out the basis for the divorce
A divorce petition cannot be filed before one year has elapsed from the date of the marriage ceremony. This rule cannot be waived in any circumstances.
There is only one ground for divorce in England and Wales: irretrievable breakdown of the marriage
The court cannot rule that the marriage has broken down irretrievably unless the petitioner establishes one of the five facts specified in law
- ‘Unreasonable behaviour’.
- Two years’ separation with the consent of the other spouse.
- Five years’ separation (no consent required).
Once one of the facts is established, a presumption of irretrievable breakdown is raised. In an undefended case, the court simply accepts the statement made in the petition that the marriage has broken down. Recent figures show that 98% of divorces pass undefended.
The other spouse can challenge the assertion that the marriage has irretrievably broken down by filing an answer to the petition denying the breakdown of the marriage. In such a case, the divorce proceedings become defended and a different procedure is followed. This is very rare.
An undefended divorce is an entirely paper based process with no court attendance required.
2. What are the most common reasons that spouses may invoke?
The most common basis for divorce is ‘behaviour’. Other grounds require a lengthy period of separation, save for adultery for which the other spouses admission is required. The evidential bar for a behaviour divorce is relatively low making it the most attractive option for spouses who do not want to wait for a 2yr separation period.
3. How long does it take to divorce in England & Wales?
An undefended divorce where there are no contested financial issues will usually take 4-6 months to complete. With contested financial issues the timescale can be 12—18 months depending on the circumstances.
4. What types of evidence can be used when divorcing?
For an undefended divorce the court relies on the statements in the divorce petition and any admissions by the other spouse. If a divorce is contested then the court can hear oral evidence and will introduce such other evidence as it deems necessary to resolve matters.
5. What other family life aspects are settled once with the divorce?
Children issues are not linked to divorce proceedings in anyway. If disputes arise they are dealt with under and entirely separate process.
Financial issues can be resolved as part of the divorce if one or other of the parties wishes it. The court has wide powers to distribute matrimonial assets. There is, however , no compulsion to deal with these matters and they can be left open if the parties choose.
6. Is my presence necessary when divorcing in England & Wales?
No, unless the divorce is contested.
7. What kind of temporary measures concerning children can be ordered during divorce proceedings?
The court does not deal with children issues within the divorce proceedings themselves. These would have to be subject to an entirely separate process.
8. How can a parent living abroad keep in touch with his child?
This would be a matter that would be dealt with by agreement by the parents or by way of a separate court application if necessary. English Law encourages parent/child contact as a matter of principle.
9. In case a parent lives in another EU State, is that an obstacle for joint custody?
In principle no, but in English Law any decision would made on the basis that the childs welfare is the paramount consideration ,and each case would be dealt with on its own facts.
10. How can a divorce resolution issued in England and Wales be acknowledged in another EU State?
EU regulations provide for mutual recognition of divorce decrees. The English courts will recognise the lawfully made divorce decrees of other countries.