How do you end a same-sex marriage?

To end a same-sex marriage, you or your spouse will need to apply for a divorce.

To apply for a divorce, you must have been married for at least a year.

The person starting the divorce is called “the petitioner” and the other spouse is called “the respondent”.

Petition

The document that starts the divorce is called a petition. The petition is a form that gives the court information about you and your spouse, and tells the court that you feel your marriage has irretrievably broken down. You must briefly set out evidence that your marriage has irretrievably broken down by supplying certain details in one of the following five categories:

1. Unreasonable behaviour: that your spouse has behaved unreasonably;
2. Adultery: that your spouse has committed adultery (see note below);
3. Two years desertion: that your spouse has deserted you for two years;
4. Two years separation: that you have lived apart for two years and your spouse consents to the divorce; or
5. Five years separation: that you have lived apart for five years.

Note: In a same-sex marriage, adultery is a category on which a petition may be based where applicable, but adultery is defined in legislation as only relating to conduct between the respondent and a person of the opposite sex. A relationship between the respondent and a person of the same-sex may fall within the category of unreasonable behaviour.

The petition is filed at court with a £550.00 court fee and your original marriage certificate.

Acknowledgement of service

The court, or your family solicitor, will send the petition to the respondent together with a form called the acknowledgment of service. In this form, your spouse has to say whether or not they intend to defend the divorce. The form has to be returned to the court. If the respondent has no intention to defend the divorce, that may be the end of their part in the divorce process and all further steps will be taken by the petitioner.

Decree nisi

The next step is for the petitioner to complete a statement in support of the petition. This is another form that states that the contents of the divorce petition are true and asks for certain technical legal details such as whether you have lived in the same household since a certain relevant date. Your family solicitor will then file it at court with your application for a decree nisi. The decree nisi means the court has agreed that you are entitled to a divorce, but has not yet made it final. After the court has received your application for decree nisi, a judge will consider your papers to make sure they fulfil the legal criteria and if they do the court will issue a certificate telling you when the decree nisi will be pronounced.

Decree nisi is pronounced in open court. This means the judge reads out a list of names of people whose divorces have got to this stage, this week. Although anyone can go along if they want to, you do not have to attend court when this happens. At any time after decree nisi, the court is able to make a binding financial order setting out your arrangements for finances and property on divorce, either by consent or as a result of separate court proceedings. It will not do so unless you or the respondent ask it to or your separate financial court proceedings have come to a conclusion.

Decree absolute

Six weeks and one day after the grant of decree nisi, the petitioner can apply for the decree absolute, which formally ends the marriage. Not everyone should apply for decree absolute as soon as it is available and you should make sure you have discussed whether you should do so with your family solicitor. It may not be sensible to apply immediately if, for example, financial arrangements are not yet settled.

Children and finances

For the purposes of any financial or children arrangements that need to be made, it doesn’t matter in most cases who starts the divorce proceedings and why. You can ask the court to make orders about money and about children if necessary during (or after) the divorce, but these legal processes are completely separate from the divorce itself.

Your Will

Divorce may mean that certain provisions in your Will do not work as you might have intended them to. You will need to make a new Will quickly after decree absolute (or in contemplation of divorce) to ensure your wishes are carried out in the event of your death.

Contact us

We offer an initial one hour fixed fee meeting for £168 including VAT, during which one of our specialist family solicitors would be able to provide you with detailed and confidential advice about ending your same-sex marriage. To book an appointment, please call us on 01628 631051 or email family@colemans.co.uk.

Categorised in: Family Law

This post was written by Colemans Solicitors LLP