3.1.1 Divorce – The Facts

To obtain a divorce, one of the spouses files at Court a Petition spelling out the reason why a divorce should be granted and setting out certain required background information. A Petition cannot be presented within 1 year after the marriage has taken place. The only “ground” for divorce is to show that the marriage has “irretrievably broken down”. The Court cannot find such breakdown unless the petitioner satisfies the Court of at least one of five “Facts”, namely (in simplified form):-

(i) adultery* or 
(ii) unreasonable behaviour or 
(iii) two years’ desertion or by the other spouse
(iv) having lived apart for two years in circumstances where the other spouse consents to the divorce or
(v) having lived apart for five years (the consent of the other spouse being unnecessary)

[* N.B. In adultery cases the petitioning party also has to show that he or she finds it “intolerable” to live with the other person.]

It is not necessary to show that the “Fact” complained of caused the irretrievable breakdown of the marriage.

The Court is concerned to ensure, in a divorce, that the welfare of any children is protected, so the petitioning spouse must also file at Court a form setting out the detailed arrangements for looking after the children.

If the Husband and Wife agree that the divorce should go ahead undefended then it will be a relatively straightforward form filling process, which does not require any attendance at Court.

It is unusual for a divorce to be defended but, if it is, then a full hearing before a Judge will be necessary, with obviously increased costs (and unpleasantness) being incurred as a result.

A divorce has two main landmarks – the Decree Nisi and the Decree Absolute. The Decree Absolute marks the legal end of the marriage. Remember that the Decree Absolute itself does not resolve any other issues (e.g. finance). It does simply bring the marriage to an end.

When a divorce takes place there are many other matters to discuss and resolve – eg. what will happen to the family home, where will the children live (and with which parent), the future contact arrangements between the children and the other parent, how to divide any savings, investments and other assets, how to approach the question of pensions, whether any maintenance needs to be paid to the other spouse, for him or herself, how much child maintenance is to be paid by the absent parent, and so on? These issues are considered in more detail elsewhere in this guide. (see Index)

The principal aim in all cases is to try to arrive at a sensible and workable agreement between a Husband and Wife when a divorce (or separation) takes place. On financial issues, the law requires each party to give “full and frank” disclosure to the other of their financial position before discussions take place, so that a fair division can be arrived at.

These matters can be resolved in various ways, eg by sensible discussion direct between the parties, through mediation, by negotiations through, or with the assistance of, Solicitors (preferably Solicitors who are members of Resolution) or, failing agreement by one of these means then, by involvement of the Court and seeking a ruling by a Judge.

You should seriously consider, before embarking on a divorce or separation, whether counselling could not assist either in avoiding an unnecessary parting of the ways or, alternatively, in helping to reduce the pain of relationship breakdown, enabling you both to move forward through a separation with less hostility or acrimony.

3.1.2 Divorce – The procedure

If the parties agree that the divorce itself will not be contested, then the procedure is as follows:-

Step 1 – The Petitioner’s Solicitors send to the Court the Divorce Petition, accompanied by a Statement about the Arrangements for Children (with the Court fee and the marriage certificate).
Step 2 – The Court registers the case, processes the papers and posts to the other spouse (“the Respondent”) – or to the Respondent’s Solicitors – the Petition, the Statement of Arrangements for Children and an “Acknowledgement of Service” form.
Step 3 – The Respondent or his Solicitors fill in the Acknowledgement of Service, indicating e.g. that the papers have been safely received and read and that the case is not to be contested; the Acknowledgement is filed at Court.
Step 4 – The Court forwards the completed Acknowledgement of Service form to the Petitioner’s Solicitors.
Step 5 – The Petitioner’s Solicitors prepare an Affidavit (a sworn Statement) confirming on oath e.g. that the contents of the Divorce Petition are true. This is sworn by the Petitioner, whose Solicitors then file it at Court with a form requesting that the divorce papers be considered with a view to the granting of the first decree of divorce (the decree nisi)
Step 6 – The District Judge considers the filed papers and decides whether a decree should be granted.
Step 7 – Assuming that the District Judge agrees, then the parties are notified by the Court that the decree nisi will be pronounced by the Court at a certain date and time.
Step 8 – The Court pronounces the decree on the due date (no-one attends Court for this pronouncement as it is simply a formal step).
Step 9 – A sealed copy of the decree nisi is sent to both parties (or their Solicitors) by the Court.
Step 10- Once a clear period of 6 weeks has elapsed after the decree nisi date, (assuming there are no reasons to withhold from doing so) the Petitioner’s Solicitors can file at Court a form requesting the Court to grant the final decree (the “decree absolute”).
Step 11 – The Court sends the sealed decree absolute to both parties (or their Solicitors).

[ NOTE: It is possible for you to process your own divorce on a D.I.Y. basis, without the services of a Solicitor ]

3.1.3 Divorce Jurisdiction

(A) It is vitally important to check first of all that the Courts of England and Wales (“the home courts”) will have the power to deal with your particular, individual case – whether it relates to divorce, nullity or judicial separation.

An E.U. regulation (called “Brussels II”) lays down the rules here.

You might easily imagine, for example, that if, say, you were married in England, or you were born in England, then the home courts would have the right to deal with your divorce case. But this is not necessarily so.

Everything, in fact, depends upon two quite complicated legal concepts called “Habitual Residence” and “Domicile”.

First, though, before explaining these concepts, we set out the circumstances in which the home courts WILL have power to deal with a divorce case – i.e., under the rules contained in this EU Regulation called “Brussels II”.

The home courts will have power to deal with a divorce, nullity or judicial separation case if:-

(i) the spouses are both “habitually resident” in England and Wales, OR
(ii) the spouses were both last “habitually resident” in England and Wales PROVIDED that ONE of them still resides here, OR
(iii) the respondent is “habitually resident” in England and Wales, OR
(iv) the petitioner is “habitually resident” in England and Wales for at least a year immediately preceding the presentation at Court of the divorce petition, OR if the petitioner is not only “habitually resident” in England and Wales but is ALSO “domiciled” here, then the petitioner needs to have been resident here for at least six months before the presentation of the petition, OR
(v) the spouses are both domiciled in England and Wales.

IMPORTANT NOTES to the above:

(a) When claiming jurisdiction under paragraphs (i), (ii) or (iii) above, NO specific period of “habitual residence” need to given, and
(b) IF the home courts do not have power to deal with the case under paragraphs (i) – (v) above, and IF NO Court of a “Contracting state” *has jurisdiction, then it is possible to fall back on the rule that the home courts will after all, have the power to deal with the case if EITHER the husband OR the wife is “domiciled” in England and Wales,

*This phrase refers to the States who are parties to the Brussels II regulation, namely: Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden and the United Kingdom.

In order to work out if one of these other Contracting States has jurisdiction, the same tests are applied in relation to the parties as are set out above, SAVE AND EXCEPT that in respect of all Contracting States OTHER than the United Kingdom and Ireland, the reference to “domicile” should instead be read as a reference to a person being a “national” of the state in question.

(c) The “Petitioner” is the person who starts the legal process of divorce by filing a divorce petition at Court.
The “Respondent” is the other spouse, namely the party receiving the divorce petition.
(B) “Habitual Residence” explained :

By and large, this means the same as ordinary residence. In other words, it means voluntary residence in a place with a degree of settled purpose to live there.

There will not normally be any difficulty in establishing jurisdiction on the basis of, say, twelve months “habitual residence”, if the person in question has been living in England and Wales for business, education or family reasons, for health reasons, or even simply for love of the country, throughout the whole of the year preceding the date of presentation of the petition to the Court.

Temporary, or occasional short absences – for example on holiday abroad – will not prevent that person from establishing “habitual residence”.

It is also the case that even rather more prolonged absences MAY not disrupt this “habitual residence”, although every such case will have to be looked at carefully on its particular facts and merits.

(C) “Domicile” explained :

Determining a person’s legal “domicile” can be a tricky business.

“Domicile” is essentially a legal concept which is used to link an individual with a particular legal system (i.e., the legal system of a particular country).

It is mainly used to work out which country’s law should govern questions of an individual’s personal status.

It is important to realise that “domicile” is a wholly distinct and separate concept from, e.g., “nationality”. It is NOT possible to find out where a person is “domiciled” merely by finding out his “nationality”. They are different concepts.

NOR is it possible to find out someone’s “domicile” simply by finding out where he lives, because “residence” and “domicile” are not the same thing.

It is also important to understand that EVERY person has a “domicile”, BUT that it is NOT legally possible to have more than one “domicile” at a time. It is possible for an individual’s place of “domicile” to change as his or her personal circumstances change throughout their life.

So how do you ascertain a person’s “domicile” at any given time?

To explain this, it is firstly necessary to be aware that there are THREE different TYPES of “domicile” :

  1. Domicile of ORIGIN
  2. Domicile of DEPENDENCE
  3. Domicile of CHOICE

A domicile of ORIGIN is attributed to every new born baby. Normally, a child of married parents receives the domicile that its father has at the time of the child’s birth. The child of unmarried parents receives the domicile of its mother. It is, therefore, the domicile of the relevant parent, rather than the place of the birth itself, which determines the domicile of ORIGIN of the child.

N.B. An individual can NEVER be WITHOUT a domicile, and thus everyone will retain their domicile of origin throughout their life. At times during the individual’s life, that domicile of ORIGIN may well be overtaken (and replaced) by a different domicile – for example, a domicile of DEPENDENCE or of CHOICE (see below) – but in the absence of any other domicile, the domicile or ORIGIN will always revive to fill the gap.

A domicile of DEPENDENCE : until a child is 16 years of age (and can acquire an independent domicile of CHOICE), the child will have the domicile of DEPENDENCE of one or other of its parents. To begin with, as explained above, this will be the same as the child’s domicile of ORIGIN, but if the domicile of the parent changes, so, too, will the child’s domicile of DEPENDENCE.

A domicile of CHOICE can be obtained by an individual once he or she reaches the age of 16 years. So how is a domicile of CHOICE actually acquired?

An individual acquires a domicile of CHOICE by living in a country other than the country of his domicile of ORIGIN, PROVIDED that he or she does so with the INTENTION of continuing to reside there permanently, OR at the very least, indefinitely.

N.B. Where e.g., a person has a residence in his domicile of ORIGIN AND a residence in another country, then the acquisition of a domicile of CHOICE in that other country will be difficult to prove unless his CHIEF residence is there.

There are, therefore, TWO ESSENTIAL ELEMENTS to the obtaining of a domicile of CHOICE, namely:

(1) Residence and
(2) Intention

For a domicile of CHOICE to be acquired in a country, that individual MUST actually take up residence there. For example, it is not enough for the individual to make up his mind sitting in his home in London that he will emigrate to Canada. He must actually arrive in Canada and reside there.

Also, mere residence in a country, even for a lengthy time, will NOT confer a new domicile of CHOICE UNLESS the intention to reside there permanently, or at least indefinitely, also exists. Thus, for example, a domicile of CHOICE will NOT be acquired in Australia by someone who is simply posted there by his employer or, for example, by spending some time there on holiday.

It is possible not only to acquire a domicile of CHOICE, but also to lose a domicile of CHOICE – and (by contrast with a domicile of ORIGIN) it can be lost forever.

Although there is a question mark over the exact nature of the intention required, it would seem that a domicile of CHOICE will be lost if the individual gives up residence in the country in question and ceases to have the intention to reside there permanently or at least indefinitely. To lose a domicile of CHOICE, both elements must be present (residence and intention).

An individual may acquire a NEW domicile of CHOICE immediately the old one is abandoned. BUT, if he does not do so – for example, if he gives up his home in one country and then travels around whilst making up his mind where to settle in the future – then his domicile of ORIGIN will, of course, revive to fill the gap unless and until a new domicile of CHOICE has been established.