Myths About Getting a Divorce in the UK

Myth

“Being ‘nice’ doesn’t pay when it comes to trying to sort out a divorce”

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Coming to an amicable agreement with your partner and getting that agreement drawn up into a legally binding document without the need to involve the courts is a much cheaper and less stressful way of approaching the divorce process than taking an aggressive or entrenched approach. It is wrong to assume that the two parties need to become aggressive and “push for everything that they can get” to reach a beneficial settlement.

Myth

“I want to start divorce proceedings on the basis of two years’ separation, but neither my spouse nor I officially recorded the date the separation started. I can’t prove we have been apart for two years and so can’t start proceedings.”

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You do not need any official record of your separation date. As long as at least two years has elapsed from the date of separation to the time you issue your petition, you can commence proceedings. If you divorce on this basis, your spouse will need to consent to a petition being issued. If he or she does not consent, your petition will fail and you will have to wait for five years’ separation or use another one of the grounds for divorce.

Myth

“If he does not sign the divorce papers, we cannot be divorced.”

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One party refusing to sign the papers does not block the process and the divorce can still happen without the co-operation of that party. The petitioner needs to show that the respondent has received/seen the papers. This means you have to get them personally served with the papers, usually by a court bailiff or process server. Your solicitor can then apply for dispensing with service of the papers, which is basically asking the court for permission to continue with your petition without having the response from your ex partner.

Myth

“We haven’t lived together for two years so we are automatically divorced.”

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Under English law you still have to go through formal divorce proceedings no matter how long you have been separated in the same way as someone newly separated or contemplating divorce. Being separated for two years can be the reason for the divorce, if both parties are in agreement, but the paperwork still needs to be completed for the divorce to be official.

Myth

“I can get divorced on a ‘quickie’ basis in two weeks like all the celebrities seem to.”

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Whatever fact you rely on, a divorce takes approximately five to six months to complete. Couples can get a Decree Nisi agreed quickly, but everyone has to wait the same length of time – six weeks and one day – before the Decree Absolute can be applied for. Celebrities and newspapers like dealing in headlines rather than facts. No one can get a divorce any more quickly than anyone else. Often what the media are referring to is the additional cases to sort out finances and access to the children, which can be dealt with on an amicable and timely basis through agreement, rather than the costly process of going through court proceedings.

Myth

“Divorce law is the same in Scotland as England.”

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There are similarities but in various respects it is importantly different and advice should be obtained. For example, there is a significant difference between the two countries on how they deal with a division of assets. In English law, the Matrimonial Causes Act gives the court discretion as to how assets and income are divided and so no outcome is certain. A lot can depend on the judge you get, and different judges may give different outcomes. In Scotland, no such discretion exists and the basis of entitlement rests on rules and principles rather than discretion; for example any post-separation assets acquired by one party would be automatically retained by them which would not be the case in England. So if you have the choice to issue in either England or Scotland, it is best to seek legal advice on which would be the best option for you.