The process of divorce: the petition

The first point is that in order to deal with the finances you need to actually sort out the divorce itself.  The divorce itself is often referred to by lawyers as “the main suit”.  For the court to make orders in relation to the house or in relation to maintenance, the main suit needs to be dealt with. 

This is because the Matrimonial Causes Act 1973 section 23 states that the court can only make orders about property etc. “on granting a decree…or at any time thereafter”.

The basic process is that someone has to petition for divorce.

A court will not consider a petition if the parties have not been married for at least a year.  That comes from The Matrimonial Causes Act 1973 section 3. 

The other party is then meant to acknowledge service of the petition.  They are supposed to indicate whether they intend to defend the petition or not.  If the other party says they do not intend to defend the petition the court can consider the petition and decide whether to grant a decree.  If the court grants a decree it will be a “decree nisi”.

After a decree nisi has been granted and a certain amount of time has gone by the parties can apply for a “decree absolute”.  That will bring the marriage to an end.

In many cases the financial parts of the divorce are dealt with before the decree has actually been made absolute.  Solicitors will usually not apply for a decree absolute before the finances are dealt with for the following reason.  If one of the parties has a pension which has death benefits for a spouse, if the decree is made absolute and then the party with the pension dies, then the other party will no longer be a spouse and therefore may not get the death benefits.

Very often the parties will agree between themselves not to apply for decree absolute for these sorts of reasons.  If on the other hand one party does want to go ahead and apply before the finances are dealt with it is not easy to stop this: See the case of Re G (Decree Absolute: Prejudice) [2003] 1 FLR 870.

Divorce petitions can be found online via government websites:

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