What are the grounds for a divorce/dissolution of a civil
partnership in England & Wales?

There is only one ground for divorce/dissolution in England & Wales which is the
irretrievable breakdown of the marriage/civil partnership. In order to prove irretrievable
breakdown, it is necessary to rely on one of five facts. The facts are as follows:

A) that the Respondent (that is the other person) has committed adultery
A) and you find it intolerable to live with them
B) that the Respondent has behaved in such a way that you cannot reasonably
A) be expected to live with them
C) that the Respondent has deserted you for a continuous period of at least two years
D) that you have been separated for a continuous period of at least two years,
A) and the Respondent consents to the divorce.
E) that you have been separated for a continuous period of at least five years,
A) for which you do not need the Respondent’s consent.

Can I divorce/dissolve my civil partnership
on the basis of ‘no fault’?

Yes, the facts D) and E) above are not based upon fault.

What defines ‘separation’?

It is possible to separate but continue living in the same house if financial
reasons do not permit one of the parties to move out. In order to show that
you have separated, you must live as two lodgers in a house-share. You must
not eat together, you must not cook for one another, you must not do each
other’s shopping, washing or ironing. You must not sleep in the same bed.

Does it make any difference whether the divorce/dissolution
is based on fault?

Not really, except that a person who issues a fault-based Petition (that is based
upon facts a) to c) above) is able to ask that the Court make an Order that their
spouse/civil partner pays the costs of the divorce, because it is the spouse’s/civil
partner’s ‘fault’ that the divorce is taking place at all. There is generally no
tactical advantage in issuing a Petition based on fault so far as issues such as
dividing the family assets or deciding who the children will live with are concerned,
although the Petitioner in a divorce/dissolution suit does, to some extent, control
the pace of the divorce/dissolution.

Will the separation start over if my spouse/civil partner
and I resume cohabitation?

If you are looking to divorce or dissolve a civil partnership on the basis of either
two or five years separation, it is possible for you to reconcile for a period or
periods totalling less than six months over the two or five year period without it
affecting the timing too much. For example, if you were to reconcile for, say,
four months and then decide that its not working and divorce/dissolution is inevitable,
all you have to do is to tack the four months reconciliation period to the end of the
two or five year period and start the proceedings at the end of that time. If, however,
you reconcile for a period or periods totalling six months or more, you will have to
start the two or five year period again from scratch.

Is it best to wait?

It can be friendlier to wait for the separation period to expire if neither party
is in a hurry to finalise matters. There are many reasons for getting on with the
divorce/dissolution proceedings, for example if one of the parties wishes to
remarry or form another civil partnership, or if you simply want to move on and
get on with your separate independent lives. If you do decide to separate with
a view to petitioning for divorce/dissolution in the future based upon that separation,
it is a good idea to enter into a Separation Agreement. The Separation Agreement
will state the date on which you separated, this will avoid possible confusion when
it comes to issuing a Petition as the whole of the two or five year period must have
passed before the petition can be issued. The Separation Agreement can deal
with agreement reached with regard to division of family assets, it can deal with
agreement reached in relation to the children and issues such as who is to divorce
whom or who should instigate proceedings to dissolve the civil partnership at the
end of the separation period.

If you cannot agree with regard to the division of family assets, then it may be
necessary to issue a petition for divorce/dissolution to give the Court jurisdiction
to assist in this aspect. If you do not wish to divorce, either on moral or religious
grounds, it is possible to petition for Judicial Separation. This way the Court will
still be able to assist in relation to division of assets and you will obtain a Decree
of Judicial Separation, freeing you from the obligation to live together and give
each other support but you will not be divorced.

What steps are involved in obtaining a divorce/dissolution
of civil partnership?

Divorce or dissolution, as distinguished from other Family Proceedings for contact
or residence of children, division of family assets and financial support, is not a
complex process. Either you or your spouse/civil partner must be domiciled or
habitually resident in England & Wales for at least twelve months preceding the
filing of the Petition. A Divorce/Dissolution Petition is filed at your local County Court.
The Petition is then sent by the Court to your spouse/civil partner by first class post.
Once your spouse/civil partner completes the relevant acknowledgement form and
returns this to the Court, you then need to file an Affidavit in Support of Petition
where you swear that the contents of the Petition are true. A Judge will then look
at the Petition and decide whether you have been able to prove that the
marriage/partnership has irretrievably broken down. If you have, a Certificate of
Entitlement to a Decree will be issued giving the date when Decree Nisi is to be
pronounced. Six weeks after that date is the first day on which Decree Absolute
can be applied for. Decree Absolute is the decree which dissolves the
marriage/civil partnership.

Can I get an annulment?

It is possible to get an annulment if the marriage does not meet the legal requirements
for a marriage in the country in which it was performed. There are other grounds for
applying for an annulment which we can discuss with you further if you wish.

How long do I have to wait before I can get divorced/dissolve
the civil partnership?

There is an absolute bar to issuing a petition during the first year of marriage/civil
partnership. After that time, so long as you fulfil the requirements of one of the five
facts for proving irretrievable breakdown, there is no waiting period.

Do I need to prove separation?

No, when you complete the Affidavit in Support of Petition, you will list the addresses
where you and your spouse/civil partner have lived since the day you separated to the
date of the Affidavit. You will also swear that the contents of your Petition are true.
This will prove to the Court that you have been separated for the requisite length of time.

What if my spouse does not want a divorce, or my partner does
not want to dissolve the civil partnership?

The only fact which needs your spouse/civil partner’s consent is that of separation
for a continuous period of at least two years. The other facts do not needs the
consent of your spouse/civil partner. It is, however, easier and cheaper if your
spouse/civil partner co-operates with the divorce. Your spouse/civil partner is
entitled to defend the petition or to produce a petition of their own (called
Cross-Petitioning). However, if your spouse/civil partner takes legal advice
they will generally be advised not to do this as the costs involved are quite
considerable and the end result will normally be the dissolution of the marriage/civil
partnership in any event.

Do the other issues – children, property etc have to be decided
before the divorce/dissolution is final?

It is not absolutely necessary to deal with all the issues and indeed some issues
may not even arise until a later date. It is, however, often a good idea to deal with
the property aspects of divorce/dissolution before the divorce/dissolution itself
is finalised. There are many reasons for this. For example, if the family home is
in the name of only one of the spouses/civil partners, then the other spouse/civil
partner has what are called ‘matrimonial home rights’. That is a right to live in
the property by virtue of their marriage/civil partnership. If this is the case,
the spouse/civil partner whose name is not on the title of the property should
register their matrimonial home rights at the Land Registry. If the issue of division
of the family home has not been resolved before Decree Absolute is pronounced,
or if the non-home owning spouse/civil partner has not registered their rights,
then they lose their matrimonial home rights because they are no longer married
or within a civil partnership. This does not mean that they no longer have the right
to claim a share in the property, it simply means that the other party can sell the
house without the non-home owning spouse/civil partner finding out about it.
They may then spend the proceeds thereby frustrating any claim to a share
of those proceeds.

Equally, if one spouse/civil partner has a particularly good private pension plan,
then the other spouse/civil partner has an automatic right to a spouse/civil partner’s
pension on the death of the pension holder. If the issue of division of pension
provisions is not dealt with before the marriage/partnership is dissolved,
then that right to a spouse/civil partner’s pension is lost as you will no longer
be a spouse/civil partner.

There are other reasons for delaying the application for Decree Absolute until
financial issues are finalised.

Before a Petition is issued, if there are minor children (that is children under 16,
or children between 16 and 18 in full time secondary education) living with the
parties as a family then consideration must be given to where the children will live
immediately upon separation, and what provisions will be made for the children
to see the parent who will no longer be living with them. These arrangements are
documented and sent to the Court with the Petition.

How long do I have to live in England & Wales
to obtain a divorce/dissolution?

Either or both parties to a divorce/dissolution must be domiciled or habitually
resident in England and Wales for the 12 months immediately before sending
the Petition to the County Court.

What is the difference between domicile and habitual residence?

A person’s domicile is the place where they have their permanent home. It must be
a place which has its own legal system, for example England & Wales or Scotland
but not United Kingdom. Habitual residence describes a place where a person
voluntarily resides with a degree of settled purpose.

After I file for divorce/dissolution, do I have to continue to live
in England & Wales?

No, but if there are likely to be proceedings in the Court in relation to the children
or to the division of family assets then it would be more convenient for you to
remain in England & Wales until the proceedings are all finalised.

How and where is a divorce petition or petition for dissolution
of a civil partnership filed?

A Petition is filed at the Petitioner’s local County Court within the jurisdiction
of where the Petitioner is either domiciled or habitually resident. The required
number of copies of the Petition are set to the Court together with the parties’
marriage/civil partnership certificate and the Court fee. The marriage/civil
partnership certificate is retained by the County Court.

How do I serve the petition on my spouse/civil partner?

The Petition is sent by the County Court by first class post to your spouse/civil
partner at their place of residence.

How long do I have to wait to receive my divorce/dissolution?

The divorce/dissolution process itself takes approximately six months. However,
as mentioned above it may be sensible to deal with the division of the family
assets before the divorce/dissolution is finalised. This can make the process
take up to approximately two years if there is no agreement and the Court has
to become involved in dividing the assets.

How is a divorce/dissolution granted?
Will I have to go to Court?

So long as the divorce/dissolution (or request for costs) is not defended by
your spouse/civil partner, there is no need to go to Court in order to obtain
a divorce/dissolution. It may, however, be necessary to attend Court to deal
with issues relating to children or property.

At any time can a parent change a minor child’s last name
without the other parent’s permission?

Not without the permission of all people who have Parental Responsibility for
that child, or failing that permission of the Court.

What is Parental Responsibility and who has it?

Parental Responsibility is all the rights and responsibilities you have in relation
to your children. It includes, but is not limited to:

•  the right to choose the child’s school
•  the right to choose the child’s religion
•  the right to bring or defend proceedings on behalf of a child
•  the right to administer a child’s property
•  the right to consent to medical treatment
•  the right to consent to a child’s marriage between the ages
•  of 16 and 18

A mother automatically has parental responsibility. A father does not necessarily.
In order for a father to have parental responsibility he must be married to the mother
(either before or after the birth of the child). However, if your child was born after
1 December 2003, so long as the father’s name is on the birth certificate, he will
have parental responsibility. Otherwise parental responsibility can only be granted
by agreement with the mother or by Order of the Court.

Can a couple obtain the same rights as married couples
by living together as man and wife for a period of time
(common law marriage)?

No. There is no such thing as a ‘common law spouse/partner’. This is simply a term
used by the media. Co-habiting couples do not acquire the same rights as married
couples. It is possible, however, to regulate your relationship by entering into
a co-habitee agreement dealing with ownership of property and assets and the
parties’ legal intentions towards each other in the event of separation.

At what point during the process can a spouse/civil partner remarry?

A spouse/civil partner is not free to remarry until after Decree Absolute has been
granted. Parties to a divorce/dissolution are advised not to make any firm plans
with regard to remarrying until after the Decree Absolute has been pronounced.

How do I choose the right lawyer?

The lawyer you choose to represent you can make a tremendous difference.
Use common sense when choosing your lawyer. Be observant, ask questions
and don’t be afraid to use your gut feeling when selecting the person to represent
you. Consider the following: a) does the lawyer have a messy office? Are there
client files and documents lying around? If so, you can assume that your file and
documents will soon be on public view as well; b) make sure the lawyer has
a formal client care letter and agreement that ensures you understand your fees,
rights and obligations; c) is the lawyer a specialist, or do they dabble in many
areas of law? You should seek to choose a lawyer who deals only with your area
of law.

Consider choosing a lawyer who is a member of Resolution. The code of conduct
for this organisation encourages lawyers to seek to resolve matters, rather than
to create or perpetuate conflict. Resolution lawyers agree to phrase their letters
in a non-confrontational way. Your matter is not a war where someone must win
and someone lose. There are no winners or losers in family law, just people who
need guidance and assistance to start their lives afresh and to divide joint assets
in the fairest possible manner for both of them.

You should avoid choosing a lawyer who is keen and eager to litigate. As soon as
you go to Court and ask a Judge to make decisions in relation to your finances or
children, you give up a lot of control you have over the process. Applying to the Court
should be seen as a last resort, only to be turned to if all else fails. Try negotiation,
try mediation, try collaborative divorce, consider a round-table meeting, but do not
litigate. You may ‘win’ at trial, but at what cost? Will you be able to dance with your
former partner at your child’s wedding? Will your child have to hire a hall big
enough to have you at one end and your former partner at the other? Do you really
want to make them have to consider that?

Litigation is destructive, expensive and an altogether unpleasant experience.
Litigation is, however, sometimes necessary. There will always be people that just
cannot agree no matter how hard you try. Reserve litigation for the most desperate
situations.

Consider choosing a collaborative lawyer. In order for a divorce/dissolution to be
conducted collaboratively, both parties must agree to instruct a collaborative lawyer.
In a collaborative divorce, everyone involved (lawyers and clients) signs a written
agreement to keep the matter out of court. This keeps everyone involved truly focussed
on reaching a mutually beneficial agreement, without threatening costly and
destructive litigation.

Consider mediation. If you would like to use the services of a mediator to try to
resolve financial and other difficulties, please bear in mind that a mediator is not
a substitute for a lawyer. You will still need to engage the services of a lawyer to
give you legal advice throughout the mediation process. Whatever agreement
you reach during mediation will not be binding unless it is put into a Court Order.
This cannot usually be done by the mediator. It should be done by a lawyer and
can only be done during the course of divorce/dissolution proceedings.

Things to do before you consider divorce/dissolution

1. Talk to a marriage guidance counsellor. Marriage guidance is not just for married
couples or couples who have entered into a civil partnership. It is for all couples who
live together as man and wife. You can find details of your local Relate Marriage
Guidance counsellors in the Thomson Local Directory.

2. Take legal advice before making any decisions. Even if you decide not to go
ahead with proceedings, you should obtain legal advice so that you know your
rights now and what you can expect from proceedings should you decide to
undertake them.

3. Do not move out of the family home without first talking to a lawyer. The best
advice is to stay in the family home until proceedings have been finalised. If, however,
your partner is violent, you should take all necessary steps to protect yourself and
your children. Seek an immediate appointment. Your partner can be ordered to
leave the family home, even if only temporarily, whether they are a joint owner or not.

AND FINALLY...

Do not assume that your partner, your best mate, the Landlord of your Local or
your hairdresser knows all about the divorce/dissolution process, even if they
have been through it before. Every case is unique and the outcome of one
divorce/dissolution will never be exactly the same as another. Obtain your own
independent legal advice.

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