Divorce and separation
There is often an understandable reluctance to begin divorce or, in the context of civil partnership, dissolution proceedings. However, in the vast majority of cases, the legal process of obtaining a divorce is relatively simple. Most of the process now takes place online and rarely requires attendance at court.
Divorce is the legal process of separation. It is distinct from and has no bearing upon:
- reaching an agreement as to how your finances should be divided; or
- agreeing appropriate arrangements for any children.
This page should provide you with some information about the legal process and hopefully give you more confidence when embarking on what can seem like a daunting process.
What do I need to do to be entitled to a divorce?
Many people still think that you need to have a reason to get divorced (e.g. adultery or extended period of separation). This was the case, before 6 April 2022, but since no-fault divorce was brought in all you need to get divorced is to be married for at least one year and to confirm that there has been an irretrievable breakdown of the marriage.
Another thing that changed on 6 April 2022 is that you can now apply for a divorce with your partner as a joint application. This was brought in to limit the adversarial nature of divorce and encourage people to enter into the process as amicably as possible.
What if my partner and/or I live overseas, but have a base in England, can we still get divorced here?
The courts of England and Wales can only deal with divorce proceedings where certain requirements are met relating to domicile or residence. If you are concerned about whether you would be deemed to be domiciled in this jurisdiction, it is important you get legal advice before starting the legal process for the divorce.
How do I apply for a divorce?
The most common way that people apply for divorce is using the online portal system. Before you start, you will need the following:
- Personal details about you and your spouse
- Details about your marriage e.g. when it was and where it took place
- Your original marriage certificate, which you will need to scan in and attach with your application
- If your marriage certificate is not in English, you will need to obtain a certified translation of the certificate
- Funds available to pay the court fee (at the time of writing the fee is £593, which may vary from time to time, so it is best to check this on the Gov website)
If it is difficult for you to use the online system, you can file for divorce by post as well.
If you are making a sole application, then once you are happy with the application form, it will be sent to the Divorce Service Centre to review. If you are applying jointly, the first applicant will fill in the application form and it will be sent to the second applicant, who will then need to review the application before it is submitted to the Centre.
The system is set up so anyone can start it off, so you may prefer to do this yourself but it is a good idea to seek legal advice if you are struggling with the system or you have any complicating factors that need to be considered before you apply.
Can my partner oppose the divorce?
It is no longer possible to defend a divorce, so no one is forced to stay in a marriage that they do not want to since the abolition of fault-based divorce. However, it is possible for the divorce to be disputed by your partner on limited legal grounds including jurisdiction and the validity of the marriage.
What is the process once I have applied?
A) Service and acknowledgement
Once the application has been submitted, it will be checked by the Divorce Service Centre and if it is correct, it will be sent out to both parties. In a joint application, the parties will also receive an ‘acknowledge receipt’ to confirm it has been received.
In a sole application, the application will be served on the respondent by the court by email along with an ‘acknowledgment of service’ notification. They will also receive a postal notification that divorce proceedings have been issued. The respondent must complete the acknowledgment of service within 14 days of being served with the divorce documents.
If the other party does not respond within the 14 days, you may want to seek legal advice about pursuing other methods of serving the divorce application on your spouse to ensure they acknowledge it has been filed.
B) Applying for a Conditional Order (formerly known as the Decree Nisi)
There is a 20-week ‘cooling off period’ between when the divorce application is issued and when the applicant(s) can apply for a conditional order. This has been to allow people to take time to really think about whether they want to get divorced and to encourage reconciliation.
When you apply for the conditional order, you usually have to wait a few weeks or sometimes a few months for the court to consider whether the parties are entitled to obtain a divorce and then have the order pronounced. It will be pronounced in a court, but you usually would not need to attend the pronouncement.
Once pronounced, the court will send both parties the conditional order. It does not end the marriage; it simply confirms that unless there is an objection, the applicant(s) is entitled to a divorce.
C) Applying for a Final Order (formerly known as the Decree Absolute)
Six weeks and one day after the conditional order is granted, the applicant(s) can apply for the final order. It is only with this order that you are finally divorced. If the applicant does not apply for the final order, the respondent can apply themselves once three months have passed (on top of the six weeks and one day).
If you are either in financial remedy proceedings or negotiating your financial settlement, then it is usually a good idea to wait until you have your financial settlement before applying for your final divorce order to ensure you have your finances sorted before the divorce is finalised.
When you receive your final divorce order, your marriage will be officially at an end and the final order will replace your marriage certificate, which you may need to produce if you re-marry.
How long will my divorce take?
Taking into account the waiting periods, obtaining a final order will take a minimum of 26 weeks (so at least 6 months). This does not take into account delays at the Divorce Service Centre, which can add more time to you obtaining the final divorce order.
As above, the main thing that delays divorce proceedings are waiting to negotiate the financial settlement, so it is good to use the waiting times for the divorce process as the time to focus on negotiating how the finances will be divided.
People entering into a divorce can face not only legal challenges, but also financial, emotional and practical concerns. With the right approach, the process need not exacerbate any underlying emotions. If you want help with this process, our sensitive and pragmatic approach allows you to focus your energies on your independent future and building a new life.