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What are the grounds for a divorce/dissolution of a civil partnership in England & Wales? Can I divorce/dissolve my civil partnership on the basis of ?no fault?? Does it make any difference whether the divorce/dissolution is based on fault? Will the separation start over if my spouse/civil partner and I resume cohabitation? What steps are involved in obtaining a divorce/dissolution of civil partnership? How long do I have to wait before I can get divorced or dissolve the civil partnership? Do I need to prove separation? How long do I have to live in England & Wales to obtain a divorce or dissolution? What is the difference between domicile and habitual residence? After I file for divorce/dissolution, do I have to continue to live in England & Wales? How and where is a divorce petition or petition for dissolution of a civil partnership filed? How do I serve the petition on my spouse/civil partner? How long do I have to wait to receive my divorce/dissolution? How is a divorce/dissolution granted? Will I have to go to Court? At any time can a parent change a minor child's last name without the other parent's permission? What is Parental Responsibilty and who has it? At what point during the process can a spouse/civil partner remarry?
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 and you find it intolerable
to live with them
Yes, the facts d) and e) above are not based upon fault. 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.
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.
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. 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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
The Petition is sent by the County Court by first class post to your spouse/civil partner at their place of residence.
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.
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.
Not without the permission of all people who have Parental Responsibility for that child, or failing that permission of the Court.
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 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.
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.
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.
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.
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.
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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