The length
of the divorce process depends on whether the divorce is straight-forward or
complex.
Straightforward divorce
If you have
the original marriage certificate and the address for your spouse then matters
should be straightforward from that point. If your spouse responds promptly
when asked by the court then the divorce process is usually between four to six
months*.
Complex divorce
A divorce
might appear to be straightforward at the beginning, your spouse may have
informed you that they are happy to agree, however, if your spouse then changes
their mind, decides not to return their acknowledgment of service form back
from the court, evades service of the court papers and wishes to either defend
the petition or the costs of the divorce, then this will mean that the usual
four to six months can take much longer and could be more than twelve months.
Factors That Influence How A Long Divorce Takes
1) Having the correct details for your spouse
If you are unsure of the address of your spouse and issue the petition in the hope that it will reach them, this will inevitably cause delay. It is advisable to have their exact details from the beginning so that your solicitor can write to them and send them the draft petition.
Your spouse can respond to confirm that they agree, provide their consent (if the divorce is based on adultery or two years separation with consent), making the process effective and saves you time.
2) Whether your spouse agrees to the divorce
When your spouse receives the divorce papers from court they need to sign and return their acknowledgment of service form. If they do not agree to the divorce they can defend the petition and then they will need to file their reasons within 21 days.
Usually when a party defends the petition the court will schedule a court hearing to make a decision and this can extend the divorce process and can incur additional fees for the parties attendance and their legal representatives.
3) The ‘fact’ of the divorce and if you have grounds to divorce
If you are unable to satisfy the
court that you should be granted a divorce by using one of the following facts
then your divorce may be rejected:
Adultery- the respondent has committed
adultery and the Petitioner finds it intolerable to live with the respondent.
Behavior- the Respondent has behaved in such a
way that the Petitioner cannot reasonably be expected to live with the
Respondent.
Desertion- the Respondent has deserted the
Petitioner for a continuous period of at least two years immediately preceding
the presentation of the petition.
Separated for 2 years and consent- the parties
to the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition and the respondent
consents.
Separated for 5 years- the parties to the
marriage have lived apart for a continuous period of at least give years
immediately preceding the petition.
You may be aware of the recent case of Owens v Owens. In this case the wife petitioner for a divorce in May 2015. She relied on the second fact above, her husband’s “behaviour”. She argued that the behaviour was such that she could not reasonably be expected to live with him anymore. Her husband defended the petition.
The judge decided that the behaviour the wife had stated in her petition we exaggerated and found no behaviour that she could not reasonably be expected to live with. The petition was dismissed and the wife appealed the decision.
Upon appeal the Supreme Court did not overturn the decision of the lower
court. The result of the court’s
decision was that the wife would have to wait and apply under the fact of 5
years separation without her husband’s consent; the earliest the wife can
present her petition based on this fact in 2020.
4) Waiting for the financial matter to be resolved before applying to finalise the divorce
Whilst during your divorce you may need to also make decisions about the finances of the marriage of the child arrangements, the court does not automatically make decisions on these issues during the divorce.
As such, depending on individual circumstances, it may be advisable to delay making an application for the last stage of the divorce, Decree Absolute until this has been resolved either by a consent order between the parties or by eventual order of the court. Depending on how long it takes you and your spouse to reach a decision of for court proceedings to resolve this issue, this may mean that your divorce proceedings will be extended.
If no final order is
made on financial issues it will be open to either party to apply to the court
for a financial order at any time even after the decree has been made absolute
and the parties are divorced.
5) Additional applications
If your spouse does
not return their acknowledgment of service form back to the court then you may
need to make an additional application(s) to the court to enable your divorce
to be granted or take alternative steps such as the below:
Service by a court bailiff
Service by an enquiry agent
Service abroad, through the Foreign Process Section
Application for deemed service to show that your spouse has received the
papers
Application to dispense with service; this is an application when all
steps to serve your spouse have been exhausted.
As mentioned above,
you will need to bear in mind how quickly a court can deal with your
application. It is sometimes advisable to use an enquiry agent rather than the
court bailiff as they will have a higher level of flexibility in being able to
attend at your spouse’s address.
Case
Example
We acted for a wife in
divorce proceedings in the UK.
The parties had married
in Poland in 1989. By the time they came
to divorce had been married for 26 years and had been living apart for five
years. The spouse had also formed a new
relationship, was cohabiting and wanted to move on with her life.
Whilst the spouse was
habitually resident in England and was eligible to issue divorce proceedings in
the UK, her husband was living in another country, Poland and this raised issues such as
service of the divorce petition abroad.
As the respondent did not
return his acknowledgment of service form back to to the court, we arranged for
an international agent to deliver a copy of the divorce petition to his home
address in Poland. However this option was not without its own issues and the
respondent did not answer the door to the international agent. The agent was
told that the respondent was out at work and that a relative would inform the
respondent that service had been attempted.
Following this attempt we
sent a letter to the respondent at the address in Poland, by recorded delivery,
and it was returned to our office.
Given the above
difficulties an application was made to the court to dispense with service of
the petition in that all possible options of serving the respondent had been
exhausted. However before the court
could grant the application it wanted confirmation as to whether the client had
tried the following:
Contacted the respondent on his mobile or
email address;
Carried out searched on social media websites
including Facebook to see whether service by Facebook Messenger could be a
viable option.
We confirmed to the court
that the client did not have a mobile number or email address of the
respondent. We also confirmed that search of Linked In and Facebook were
undertaken and the respondent appeared to be on the social media platform.
Following an approved
application for the petition to be served on Facebook the court confirmed that
once completed the petition would deem to have been served 48 hours after
service.
The above order of the court enabled the client to go on to
apply for the middle stage of the divorce proceedings, Decree Nisi. The client
finally obtained a Decree Absolute in May 2019.
Typical
Timeframe For A Divorce
The divorce process is as follows:
Prepare your petition and send the court
The court issues your petition and sends it to your spouse. They have
14 days to return the acknowledgment of service form.
Once the acknowledgment form is
received you can apply for Decree Nisi
You can then apply for Decree Absolute, the final stage, after a period
of six weeks and one day from the Decree Nisi.
Our
Divorce Solicitors Can Help
We estimate that without any complications divorce proceedings in England and Wales should take between four to six months without any delays on the court’s part. However, when a respondent lives abroad or evades service or has subsequently moved address, the process can take a lot longer.
However what the above case study proves is that at IMD we explore all options to overcome these complex international divorce cases and even though the international divorce process takes longer than planned, we have success in obtaining the required outcome; in this case a divorce when a spouse lives in another country.
*Due to the financial constraints of the court, closures and significant backlogs, the process can take much longer than six months as the court’s estimated time for processing each individual application can be between 7 days to three months.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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