Frequently asked questions - Divorce-Q&A

Q: My wife and I are exploring the possibility of getting divorced. Our circumstances are, we think, unusual: I am 59, my wife 65. We have been married for 38 years. We have been good friends, our marriage free of sexual emotion. I am gay, but have never had a same-sex relationship. At any time my wife could have divorced me but chose not to do so. Now my wife is in love with a Native American who is currently serving time in a U.S. penitentiary. The man concerned is also my friend and my divorce and his wish to marry my wife is amicable. My wife and I are only looking at divorce and its ramifications, including costs, at this stage. Would using my sexuality make divorce proceedings simple and quick, or mine and my wife's mutual aggreement, or the fact that we have not had sexual relations for many years?

Although the facts may indeed be a little unusual, unlike so many other divorce situations, and thanks to the good sense of you and your wife, this is neither an unhappy or difficult situation. It should be resolved by you and your wife over a good glass of wine and with out spending unnecessary money. It is not the role of the law to place obstacles in the way of mature people without young children who wish simply to change the status of their relationship.

It would seem to be common ground between you and your wife that the marriage has irretrievably broken down, that the marriage is an empty shell, and that it should be dissolved without acrimony. All therefore that needs to be done is for you to decide who is to divorce who. This makes little difference. When that decision has been made, I have no doubt that in a friendly and amiable manner you can sit down together and put together unreasonable behaviour particulars sufficient to satisfy the legal requirement of grounds for the irretrievable breakdown. I can help with these without difficulty if required and would take you through all the procedural steps to have the marriage dissolved.

You do not mention the financial matters and I anticipate that happily you and your wife will have decided these between yourselves.

Q: My partner would like to get divorced from his wife whom he has been seperated from for over 5 years now but does not know where she resides to send any court papers to.He has spoken to 3 different solicitors whom have all told him he needs an address to send this to, others have told him he doesn't need the address.Can u please help with this matter as it's proving a problem trying to find an address for her.

It will be necessary for your partner to include with his petition for divorce an application to dispense with service upon his wife. This application must contain a statement showing the efforts which have been taken to establish her whereabouts. This may include contact with all known relatives and possibly an advertisement in a newspaper circulating in the area where she last lived.

Q: My wife (English) and I (German) got married in a registrars office in Germany according to German law. We did have a church ceremony 6 months later in the UK but this has no legal relevance as far as I know as we never signed any papers in the UK. Unfortunately we are heading for divorce as she committed adultery. We lived for 4 years in Germany and moved to the UK 8.5 year ago. If we decided to get divorced would we have to apply for divorce to a German court or an English court?

There is no particular problem here. It would appear that both you and your wife live and are domiciled in the UK, and will therefore come under the jurisdiction of the UK courts. As such you may petition for divorce in the UK and it is quite irrelevant that the marriage took place overseas.

Q: I submitted my divorce petition last April. My wife and I agreed to proceed on the basis of two years separation with consent. We have been separated for a long time, more than two years. The problem is that for the first 5 months of the period stated in the petition we were still living at the same address. When it was financially possible to do so, my wife moved to another address. The district judge has rejected my petition three times now. Stating that the petitioner must file more evidence of the nature of the separation when we lived at the same address. I have done as advised and sent an afidavit to the court stating that we had separate rooms, cooked and washed separately and provided for our own needs. But the judge still says he wants more evidence. I have written to the court asking for clarification of what is required. But have been told by the court clerks that the judge will not respond to correspondance. I would be grateful for any suggestions you might have as to what more evidence I could possibly supply.

I am afraid that some District Judges can be particularly awkward, and once a matter becomes bogged down like has happened with you, it can be difficult as you have found to extricate it.

The answer is most probably to amend your petition. I suspect that by now you and your wife will have lived in separate households for more than two years. Providing this is the case your petition should be amended to show the new dates and the two years of separation. You will need to apply for leave but this should be given without difficulty. In your application ask for service to be dispensed with. If you need a hand preparing the application and amended petition, let me know.

Q: Present situation: I (the wife) am about to present a petition for divorce on the grounds of 2 years separation with the agreement of my husband. We both want an amicable outcome without legal intervention if possible. We have children over 18. Finances: We have a car each in individual names which we wish to keep. We have individual bank and savings account which we wish to retain as they stand. We have a house which is currently on the market. We want to split the proceeds 50/50 after settlement of loan, mortgage and conveyancing fees. THEREFORE: 1) With regard to the petition form section (3) Ancillary relief. Do I need to apply for any of these at this stage? The only ones that appear relevant are 'secured provision order' and 'property adjustment order' however I don't understand what these are. Pension sharing is not applicable. 2) We have been advised that a 'clean break order' is advisable. My understanding is this should be done after the decree nisi has been issued. a) how is this done and who has to grant the order? b) can I do this myself (is there a special form) or must it be done by a solicitor? c) is it done through the County Court? d) can we INSIST monies be split as WE want, even if it appears unfair to a judge? I am living with a partner in his house. My husband is not working, the money he would have from the sale of the house will not be sufficient to buy another property and he doesn't want to waste it on rent. It is our intention to buy a property jointly after our divorce, possibly with a 'tenant in common' agreement and he would live there.

What you say and what you intend is absolutely right and as it should be. When you are considering the position keep quite separate in your mind the divorce which simply dissolves the marriage and finalising financial matters between yourself and your husband which are referred to as 'ancillary relief'

The divorce side is absolutely straightforward. It is really simply a paperwork exercise. As far as ancillary matters are concerned, what you and your husband are proposing is the obvious and clearly fair settlement between two people who have brought up children together and then decided to live separate lives.

With regard to the specific questions you ask:

1. Yes you should. The usual thing is to simply ask for the whole lot. This is not a hostile move against your husband, but if you do not make the application for ancillary financial relief, the court will not be able at a later date to make a consent order.

2. Yes, the court does not have power to make a consent order until after decree nisi. The application must be made before decree absolute. There is absolutely no reason why you cannot do this yourself as the procedure is straightforward and again in your case where everything is agreed, simply a paperwork exercise. I hope our ancillary relief kit will adequately explain the procedure. Having applied and you and your husband having provided basic financial information, the papers will simply be put before a district judge at the County Court together with a draft consent order which you must draw up and the order will be made.

The other thing you should bear in mind is that it is your marriage, your money, your house, etc. The policy of the court is not to intervene in these matters which concern only you and your husband. A court would only refuse to make a consent order when it was obviously unfair and there was a possibility of one party suffering from undue influence or the like, or in circumstances where divorcing parents had not made proper arrangements for minor children. Clearly none of this applies to you and there can be no possibility whatsoever of the court refusing a consent order in the terms you propose.

Q: I left my wife 14 months ago to live with my present partner. my wife has told me she will not divorce me until 5 years have elapsed. I am aware that we could mutually agree to a divorce after 2 years but she will not agree to this. I myself cannot divorce her on grounds of unreasonable behaviour as this would be untrue. Do I have to apply to the courts for a legal separation? And if so will the 5 years I have to wait for my divorce begin from that date. If I do not have to apply for a legal separation what proof will I have to furnish to show that I left my wife when I did?

Most unfortunately there is very little that you can do. Certainly there is no action which you can take to make your wife divorce you other than trying to persuade her. If you were to file a divorce petition it would have to be on the grounds of your wife's adultery or her unreasonable behaviour which would not appear to be available. If she will not consent to a divorce after two years separation there is I am afraid no alternative other than to wait for five years when consent is not required.

It is not open to you to apply for a judicial separation as the above grounds would still have to be shown and the only real difference is that it is not necessary to plead that the marriage has irretrievably broken down.

If your wife is quite determined to make you wait for five years from the date of separation it could well be sensible to discuss with her a separation agreement to deal with property ownership and financial matters until the time of the divorce.

It will only be necessary to prove the date of separation if this is disputed by your wife on presentation of the divorce petition.

Q: I do nothing but argue with my wife and now we have decided to divorce. I am quite prepared to maintain my children but my wife has a child from a former relationship. Will I be obliged to maintain her as well?

Possibly if it is decided that your stepdaughter has been treated and maintained by you as a child of the family and cared for her as your own. There will however also be an obligation on the natural father to maintain her which should be pursued.

Q: My husband has run up very substantial debts which now he cannot pay. He tells me that as his wife and I am responsible for these debts and that I must give him money to pay them. Is this correct?

No it is not. So long as the debts are only in your husband's name you have no responsibility for them. If however the debts are on a joint bank account or taken out in joint names then you would be liable with him.

Q: My sister's new partner separated from his wife 18 months ago. They recently moved in together but since they have, his wife has lodged a divorce petition citing his adultery. She says that this is the correct citing as he is now in an adulterous relationship with her. Is this correct and would a divorce be granted under these circumstances. They were not together when he was married, only after he had already left home and separated from her. Is there any financial reason which would encourage her to use these grounds as opposed to 2 years separation or unreasonable behaviour?

Adultery by itself is insufficient to base a petition for divorce. The petitioner must find the adultery intolerable and there is probably an argument in this case that as they were separated she would not find it intolerable for him to find a new partner. The fact that they were separated will not however change this from being adultery as although separated they were still married. There are no financial implications to admitting adultery and the grounds on which a petition are based will have no relevance in usual circumstances to the ancillary financial settlement

Q: My ex-partner has filed for divorce that we both want – there are no children and I have no property. However, in the divorce document itself the particulars are inaccurate and are completely one-sided against me. She has requested maintenance payments but ‘at an amount she sees just’. I am concerned that the reason that she has painted me in such a bad light may be to push for higher payments. 1. I want the divorce to go through uncontested since I can’t afford an expensive court case, involving barristers but do I just agree with the papers and sign? My main concern is that the payments I make should be fair, taking into account my income which is only around £14 000 pa. By signing – am I effectively saying that she can demand whatever amount she wants? 2. Also, it says I would bear the costs of the divorce – are these just court fees – or do I have to pay for her expensive solicitor, too?

The grounds for divorce and particulars of unreasonable behaviour contained in a divorce petition are totally irrelevant when deciding financial matters. It is well-established that conduct plays no part in deciding ancillary financial matters and cannot even be raised and put before a judge if it comes to having to ask the court to decide financial issues. It is unfortunate that the petition issued by your wife should contain controversial matters but this really will not affect the outcome. You need therefore not have any concerns about consenting to the divorce which you both require.

What I suggest that you do is write back to the solicitor instructed by your wife saying that you do not to agree with the allegations but will allow the petition to proceed on an undefended basis providing they agree not to proceed with the claim for costs in the petition. This is quite usual and I am sure they will agree. By agreeing to the divorce you are only consenting to the marriage being dissolved. The question of any maintenance payments is quite separate. In being aware of your inability to pay maintenance I am sure that your wife will not proceed with this claim.

Q: I am 33 years old and I got married 12 years ago in Nigeria to some one I had just met. He lived in Germany and he wanted me to come to Germany to live with him but told me he needed my passport(British passport) to take back with him to show the German authorities and inform them his wife was coming over soon. He left with my passport but it was seized at the airport. He called me to tell me my passport had been seized and that was the last time I heard from him. The marriage was never consummated. How can I have this marriage annulled. I only know his name and know nothing else about him, I also do not have a copy of the marrage certificate. I currently reside in the UK.

I am so sorry to hear of your marriage experience. It may sound difficult and complex to extract yourself from this situation,but in reality it is not. What you must do is look separately at each aspect of the problem.
The first issue is to jurisdiction, and to which Court in which country you must apply. You say that you now reside in the UK. In itself this is not necessarily enough to give the UK courts jurisdiction to dissolve the marriage. For them to do so you must have UK domicile. This is a fixed intention to live and remain in the UK. I suspect that as a British passport holder you will have this, and I would not envisage any jurisdiction problems in making an application to what would be any UK County Court with divorce jurisdiction.
The next issue is grounds to present a nullity petition, and very clearly you have this as the marriage was not consumated.
The third and final barrier is service of the petition, with you not knowing where your husband now lives. What you will have to do is advertise the
issue of your nullity petition in a newspaper covering the area you most likely believe he is living. Not knowing where he lives is not a bar to
obtaining a decree, it is only necessary for you to
show the court that you have done everything possible to bring the petition to his notice.

Q: I am being asked to contribute half of my husbands costs for divorce approx. £400. Do I have to pay. I am the respondent. On the petition there was no claim for me to pay costs in the Prayer, this was left blank. I have not employed a solicitor, as I cannot afford one. We were only married for 16 months. I own and paid for the house we shared valued at £120,000 before I met him, he contributed towards household bills, food, holidays etc. He left with the majoraty of £50,000 which was from the sale of the property he was sharing with a former partner. Some of that was usued to pay off a loan which he took out against my will, to pay for the wedding and a car loan he had when we met. I am very concerned that if I continue to refuse payment, he will make further claims against me, and maybe go for a share of the property or my pension. When he left me, we agreed to a clean break, not to claim on each others assetts. Am I within my rights to refuse payment or can the courts make me pay. He moved out when I was at work, did a runner. He is now renting a house.

You are only obliged to make a payment for the costs of the divorce action if you were ordered to do so by the court. It would seem that your former husband in his divorce petition did not make a claim for costs and therefore he can not now require you to make a contribution.

Q: my partner married a brazilian lady in Brazil and they came to live in uk, he is English and after 11 months she left him and went back to live in Brazil, now 6.5 years later he wants a divorce but she refuses to even speak to him, although she sent divorce papers from Brazil for him to sign and she says they are divorced but refuses to send any papers to confirm this. We have contacted everybody we think would be able to help but reach no results. Where does he stand, we want to get married but do not want to break any laws.

Providing that you have an address for this Brazilian lady there should be no particular problems. The important thing is service of the divorce papers on her as it is a basic rule that parties should know whether or not they are married.

Your Partner is entitled to issue a divorce petition based upon five years separation. The other parties consent is not required. Therefore if you are able to establish service of the petition upon her in Brazil the lady need play no further part than and the marriage will be dissolved with out difficulty. This will of course involve you in the expense of employing a process server in Brazil to serve the petition and provide a sworn affidavit of service.

Q: I'm filing for divorce, however, my wife and I reside at the same address and will continue to do so until the house is sold. Given that we have separate bedrooms and have not slept together since September 2005, we do not eat meals together, share household chores and household bills; will the fact that we reside at the same address affect my divorce petition?

The practicalities of a marriage breakdown often result in this situation which is not uncommon. I see no reason why the fact that you are still living under the same roof with your wife should have any effect on the only concern for the court which is whether the marriage has irretrievably broken down and that one of the five ' facts ' exist to establish this. The answer is therefore no, but do let me know if I can help further.

Q: My boyfriend is legally separated and is trying to file for divorce. His wife is bi-polar and very unpredictable. If she decides not to sign, what is to be determined as a result?

I suspect that it will be the case that your boyfriend’s marriage has irretrievably broken down. If he is able to establish this on the basis of her behaviour or adultery then he will be entitled to a divorce which is not conditional upon his wife's agreement. He must however be in a position to prove service of the petition upon her.

Q: My husband and I have been having marriage problems for at least 3 years, mostly after our son (now age 4) was born but we have always had problems since we married in 1997. We have come to the conclusion that we cannot live together anymore. If we decide to divorce, would we need reason apart from irreconcilable differences to get divorced? I feel that I have been subject to emotional abuse for a long period of time, would this be grounds for divorce? Also I would like to know my legal rights as mother of my 4 year old son with regard to getting custody. At present we both share equally the care of our son, I am in permanent part-time employment and my husband is self-employed. If we separate what are my chances of gaining custody? I am all alone as I am originally from Australia so I don't have any friends or family here and I all I've heard so far are terrible things like I may lose my son etc. I am very scared and alone but I want to fight for custody of my son if it comes to this so I want to know what my rights are as mother are. Can you please advise me?

Firstly let me deal with the question of divorce. If you have reached the decision that the marriage has irretrievably broken down, I have no doubt that you will be able to evidence this by the emotional abuse you have suffered as unreasonable behaviour by your husband. The DIY Divorce Kit contains all that is needed to bring a divorce action and there is much free information on our website which explains the process.

Matters concerning children are decided by what is in the child's best interest. It would be usual for a child of tender years such as in your case to live with the mother. I can see no reason why this should not happen here

Q: My marriage has broken down after less than a year and I am no longer on speaking terms with my ex-partner. After checking out your website I found that a judicial seperation would most probably be the best course of action, I was just wondering the best way to go about applying for a judicial seperation and the costs of doing so as I am working a minimum wage job.

A judicial separation is possible within the first year of marriage, but as it does not actually dissolve the marriage most people do not bother and tend to wait until they can divorce after one year. Tghat would be my advice to you unless thgere are any particular reasons why you feel that tgere should be a formalsettlement. You can claim maintenance without issuing either a divorce or judicial seperation petition.

Q: I married in New Orleans and wish to divorce. We live in the UK do I use US petitions and send to Louisiana or do I petition in the UK.

No problem with filing a divorce petition in the UK providing you and your spouse live and are domiciled here. The UK courts will have jurisdiction

Q: The certificate of decree said my husband had to supply to both the court and to me a statement of his objections to my request for an order for him to pay my costs, no later than 14 days before nisi. I would then have to supply a response no later than 7 days before nisi. It would appear he has not lodged his official statement of objections. Does this mean he cannot contest the judges decision regarding any order for costs? I am concerned that he may be able to delay the nisi if he realises he has missed his opportunity. Can he do this? If he has not lodged an official objection does this mean the proposed order is uncontested? If it is uncontested, does this mean we do not need to attend the court?

If your husband has not submitted any objections to your claim for costs, then it is highly likely that the judge will agree your claim and will reward you the costs of the divorce proceedings. The issue of costs is highly unlikely to delay the grant of your decree nisi and it would be quite unthinkable for this to happen because of the omission of your husband. Under the special procedure when a certificate of entitlement to a decree has been issued, it is not possible to oppose the actual pronouncement of the decree.

Q: I have been married for six disastrous months. When can I divorce?

You cannot file for divorce until you have been married for a year. There is nothing however to stop you separating at once, and you should consider either filing for judicial separation or entering together into the separation agreement.

Q: My sister’s divorce cost her a fortune in legal fees. Is it possible for me to get a divorce without using a solicitor?

Absolutely! Providing everything is straightforward there is no reason why it should cost you much more than the Court fee which is currently £180. However bear in mind that getting divorced is only part of the story. Very often the legal fees are incurred not in arranging the divorce but in sorting out ancillary matters such as finances, ownership of property, and sometimes arrangements for children.

Q: My husband is applying for divorce. Will I have to go to court?

Not if everything is straightforward and you are prepared to agree to be divorced. However matters may be different if there are disputes over children or money.

Q: How long will it take me to get divorced?

A realistic estimate of the time between filing the petition and pronouncement of decree nisi would-be six weeks. You must then wait a further six weeks before you can apply for the decree to be made absent.

Q: I am enquiring assistance with my upcoming divorce. I am a Finnish national, as is my husband, and we got married in Finland. Getting a divorce through Finland is straight forward, however before we can get if finalised, we need to have come to an agreement with regards to custody, visitation rights and maintenance issues in relation to our daughter (now 3). He is unwilling to discuss anything; thus I think we need additional help with this matter. What is the best way forward, as we both live in the UK permanently, and have been living here for the past 7 years.

The process in the UK to dissolve a marriage which has irretrievably broken down is quite straightforward where both parties agree that there should be a divorce. As in Finland it is a requirement that both parents consider the arrangements for children.

You are now resident in the UK and may therefore apply to a UK court for a divorce. You will need to provide your Finnish marriage certificate with an official translation. It is unfortunate that your husband will not discuss matters but this is not a barrier to you obtaining a divorce and indeed such orders as may be necessary to deal with finances and matters concerning your daughter.

Q: My husband and i have been together for 23 years and having tried very hard to make things work between uswith no outcome, I now feel i have to move on without him. Can you explain what my next step should be please? I know i can divorce him, but i have read up about separating informally so we no longer live together. This would mean one of us moving out our family home. We have two children aged 15 and 19 whom still live at home so i believe in the best interests of our children that i should stay and my husband should leave. My question is if he is unwilling to go how do i get him to leave and will the house be mine if we agree on a settlement of money. I don't really want to sell the house and would like to take it on solely for myself and my girls.

You should ask yourself whether there is any prospect of you living again with your husband in harmony. If the answer is no it is best to grasp the nettle now and divorce. This will enable all the matters you are concerned about to be resolved. Although separation may seem a simpler solution in effect it is not as whilst married there will always be uncertainty and the financial obligations of married couples to each other will continue notwithstanding the separation.

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