Same-Sex Divorce Process

by | Jan 4 2021 | Family Law, Popular

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By Alex Ashcroft
Alex heads up LGBT Lawyers' web design and writes about LGBT legal issues in his spare time. While not part of the LGBT community himself, Alex is an avid supporter of LGBT rights. With interests in politics and connections in Brighton's LGBT music scene, Alex brings another valuable perspective to LGBT life.

Divorce Process | Read Time 10 Minutes. 

Is the same-sex divorce process the same as opposite sex-divorce?

The same-sex divorce process was introduced after the Coalition Government introduced same-sex marriages after the passing of the Marriage (Same-Sex Couples) Act on July 17 2013. The first same-sex marriages took place shortly after the passing of legislation on March 29 2014. Sadly, just like marriages between opposite-sex couples, they don’t always work and could break down. The office of national statistics found the most common reason for same-sex divorce in 2019 was unreasonable behaviour. Same-sex spouses can seek a divorce based on a set of grounds that come under the Matrimonial Causes Act 1973.

The Office for National Statistics revealed that there were 107,599 divorces of opposite-sex couples in England and Wales last year, up by nearly a fifth from 90,871 the previous year. Furthermore, the research also found divorces between same-sex couples doubled from 428 in 2018 to 822 in 2019.

The difference between same-sex divorce and opposite-sex divorce is that adultery is not applicable. Adultery cannot be used because, in law, adultery specifically relates to sex between a man and a woman.

Same-sex divorce - Two men - divorce process -shouting - LGBT Lawyers

What are the grounds for same-sex divorce?

The court can only grant a divorce if they are satisfied that the marriage has irretrievably broken down. The proof that a marriage has reached an irretrievable state has to be one of the four specific grounds. These include:

1. Unreasonable behaviour.
2. Desertion.
3. Separation for more than two years, if both parties agree.
4. Separation for more than five years even without an agreement.

It can also be noted that you must be able to satisfy the court by adhering to the jurisdictional requirements. You must be able to meet at least one of the following criteria:

1. Both be habitually in England and Wales.

2. You were both last habitually resident in England and Wales and have lived in England and Wales for at least one year immediately prior to the petition being filed.

3. The petitioner is domiciled and habitually resident in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed.

4. Both are domiciled in England and Wales.

How does same-sex divorce work?

The initiation of divorce starts with filing a divorce petition to the court. If the court then deems that you are entitled to a divorce, they will grant you a Conditional Order. Once granted a Conditional Order you must then apply for the Conditional Order to be made into a Final Order. The Final Order formally dissolves your gay marriage.

There are a total of ten stages to same-sex divorce, which include:

Divorce petition

The individual seeking a divorce is known as the petitioner and is the one who files a divorce petition (also referred to as a matrimonial order).

The petitioner fills in a divorce petition form. Once filled in, the petitioner sends two, or multiple, copies together with a copy of their marriage certificate their nearest divorce court.

Court informs the respondent
Once the divorce petition has been sent, the court sends a matrimonial order application and other documentation to the husband or wife of the petitioner (“the respondent”).
Acknowledgement of service

Once the petitioner receives the matrimonial order, they reply to the court by sending a completed acknowledgement of service form.

Confirmation of acknowledgement to petitioner
Once the last stage has been complete, the court sends a copy of the acknowledgement of service form to the petitioner.
Respondent's opportunity to oppose

The respondent has 21 days to oppose the divorce. To do so, they must complete and send the court an answer to a divorce petition stating their reasons.

It can be noted, the respondent can also opt to start a divorce proceeding against the original petitioner. For example, the respondent may initiate a counter-claim about the unreasonable behaviour of that person.

Petitioner applies for decree nisi
The petitioner completes and sends the court an Application for a decree nisi form. This application will also include a copy of the respondent’s response to the divorce petition and a statement form. The petitioner/applicant confirms the facts set out in the original divorce petition. It can be noted, there are five types of statements, and they depend on the grounds for the divorce.
Decree nisi granted

If the respondent does not oppose the divorce and the judge agrees with the grounds, they will grant Decree Nisi.

However, if the respondent opposes the divorce, there will be a court hearing. The judge may grant decree nisi or send both parties a “notice of refusal of the judge’s certificate form”, stating the reasons why they cannot divorce.

Petitioner applies for decree absolute

After the Decree Nisi has been granted, the petitioner has six weeks to apply for a Decree Absolute. The Decree Absolute is the legal document which ends the marriage. The notice of application is used for the Decree Nisi to be made an absolute form.

Alternatively, in the case where 4.5 months have passed and the petitioner has failed to apply for an absolute form, the respondent can apply using an Application notice form.

Decree absolute granted

The Decree Absolute is the final stage of divorce and marks the end of marriage in legal terms.

LGBT Lawyers Same Sex Divorce Process Flowchart
How can LGBT Lawyers help you with same-sex divorce?

Divorce can be an extremely stressful and long process. There are various legal complications involved in the process of a divorce. Furthermore, a divorce normally involves other separate legal matters such as financial settlements, property and childcare.

Therefore, it is essential that you find a lawyer as they can advise you on the best options available to your individual situation. LGBT Lawyers can connect you with an expert lawyer who won’t treat you differently because of your sexual orientation.

Need an LGBT Lawyer on your side?

We’re here to assist. Just tell us what you need help with and we’ll call you back to arrange a meeting.

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