Divorce Proceedings

August 16, 2021
|In Family Law
|By admin

We understand the divorce process is emotional and we are here to assist you in the process. Our family law team has wealth of experience and they are here to make this process as painless as possible for you.

Scope of this article:

The divorce process can involve up to three separate elements. These elements are interlinked but we must also consider them separately.

The three elements are: –

  1. Divorce petition – ie ending a marriage;
  2. Financial arrangements – how should the matrimonial assets be divided; and
  3. Arrangements for any dependent child – contact arrangements.

This article addresses the first element of the divorce process.

Who can get a divorce in UK?

Either party to the marriage can initiate divorce proceedings (section 1(1), Matrimonial Causes Act 1973 (MCA 1973)).

What are the legal requirements of divorce in UK?

There are three legal requirements that the petitioner of the divorce has to meet before issuing a divorce:

1, The parties must have been married for at least one year.

2, The court must have jurisdiction to hear the divorce . Whether or not the court has jurisdiction will depend on the parties’ habitual residence or domicile. You must satisfy one of the following criteria: –

  • Both parties to the marriage are habitually resident in England and Wales;
  • Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
  • The Respondent is habitually resident in England and Wales;
  • The Petitioner is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  • The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  • Both parties to the marriage are domiciled in England and Wales; or
  • The Petitioner or the Respondent is domiciled in England and Wales.

3, The marriage must have irretrievably broken down. To support the irretrievable breakdown of the marriage, you must prove one of the five facts: –

  • Adultery;
  • Unreasonable behaviour;
  • Desertion;
  • Two years’ separation with the consent of the respondent; or
  • Five years’ separation (see Practice note, Divorce and dissolution: five years’ separation).

If you are uncertain if you can satisfy all of the above legal requirements, please contact our family law team at chinadesk@cnsolicitors.com.

After I filed for divorce, what’s next? (Petitioner’s perspective)

After you file the petition for divorce and pay the court fee (£550), the court seals your divorce application form and sends it to the Respondent. The Respondent is required to complete and return an acknowledgement of service. This document will confirm that (1) he/she has received your petition; and (2) inform the court whether he/she wants to defend the case.

If the Respondent decides not to defend the case, you are required to prepare and file with the court, an application for Decree Nisi, supported by a signed statement.

The court will consider your application for Decree Nisi and statement and if they are satisfied that the marriage has irretrievably broken down, the court will send you a certificate of entitlement to a Decree Nisi. This will set out the date a judge will pronounce the decree.

You will need to wait 6 weeks from the date you receive your Decree Nisi, to submit your application for a Decree Absolute.

How long does it take to get divorced?

An uncontested and straightforward divorce typically takes six to eight months, provided that both parties deal with the court papers promptly.

Does it make any difference who files for the divorce?

Generally, this should make no difference to the final outcome.

However, this may become relevant in certain circumstances.

For instance, if your spouse wants to file for divorce in China and divide the matrimonial assets based on the Chinese legislation, while you consider it is more appropriate to file for divorce in UK and divide the matrimonial assets here, then you should obtain legal advice as soon as possible.

If your spouse issues divorce proceedings in China first, you may not be able to issue the same proceedings in the UK and you may be bound to deal with your divorce proceedings in China.

Do we have to agree a financial settlement and child arrangement before the divorce can go through?

No. The three elements of divorce are interlinked but shall be considered separately.

It is advisable for an agreement to be reached on financial terms as this gives certainty to both parties that they have no claims on the other spouse’s assets and more importantly you can live a separate life from your ex-spouse.

It is also advisable to try and reach an early agreement for any child arrangements to minimise the impact of the divorce to the child. It will be in the best interest of the child if this can be agreed in advance.

If I get married in China or in other jurisdiction, can I get a divorce in UK?

Provided your marriage is recognised by the Family Court of England and Wales and your circumstances satisfies the above three legal requirements, then you should be allowed to get a divorce in the UK.

If you are uncertain whether your circumstances are considered habitually resident and/or domiciled in the UK, please contact chinadesk@cnsoliciotrs.com for further information.