The law relating to divorce will be changing from 6 April 2022.
This guide covers the current position prior to that change taking place. For information relating to the position after 6 April 2022 please read our guide to No Fault Divorce.
When a marriage or civil partnership has broken down irretrievably, a spouse or civil partner may wish to legally end their relationship. For married couples this is by a divorce and for civil partners this is by an application for a dissolution. The process is largely similar for both divorce and dissolution of civil partnerships.
What is a divorce petition?
A divorce petition is the document used to start the divorce process. The prescribed application form is called a D8. The form can be found online and it must be completed if you are applying to the court for a divorce.
How long do divorce proceedings take?
Divorce proceedings typically take between four to six months under the current process.
However, the length of the overall process will depend upon whether the petition is contested by the respondent; or whether there are financial matters to resolve.
Where can divorce proceedings be issued?
Before a divorce petition can be issued, in order to have jurisdiction, the court must be satisfied that one of the following applies:
- both parties are habitually resident in England and Wales
- the respondent is habitually resident in England and Wales
- both parties are domiciled in England and Wales
- the petitioner is habitually resident in England and Wales and has resided there for at last a year prior to filing the divorce petition
- the petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the petition
For most people, if you live in England or Wales you will usually be able to issue divorce proceedings here. However, there may be circumstances where you can live abroad and still issue proceedings in England or Wales.
If you are unsure as to whether you may be domiciled or habitually resident in England and Wales you should take specialist legal advice.
Is it better to be the petitioner or respondent in a divorce?
In most circumstances either party to a marriage or a civil partnership can issue divorce or dissolution proceedings.
The petitioner initiates the divorce. The other party is known as the respondent who receives the divorce petition. These terms are used to make it easier to refer to each party during the divorce process.
Generally speaking, it does not matter who issues divorce proceedings. However, for many people they would prefer to be the petitioner as they then have greater control as to the speed at which the divorce proceedings progress.
A family lawyer can advise you as to the best way to proceed based on your circumstances.
How soon after marriage can you issue divorce?
It is important to be aware that you cannot apply for a divorce or dissolution during the first year of the marriage or civil partnership.
Costs of divorce/Who pays the fees?
In the majority of divorce cases, the petitioner will pay their legal fees and court costs as they have initiated the divorce proceedings. However, they are able to request that the court make an order that the respondent should pay some or all of their costs.
It is advantageous to try and reach an agreement on costs before divorce proceedings are issued, if this is possible.
If an agreement cannot be reached on costs then a judge will make an order for costs at the interim stage of the divorce process.
Divorce process
Step one: Setting out the ground for divorce or dissolution
Currently, under the law in England and Wales, there is only one ground for divorce which is that the marriage or partnership has broken down irretrievably.
In order to satisfy this ground, the petitioner must prove one of five facts set out below in their divorce petition:
- Adultery
- Unreasonable behaviour of the respondent
- Desertion
- Two years’ separation along with the respondent’s consent
- Five years’ separation without consent
The facts above are the same for a dissolution of a civil partnership with the exception of adultery.
Step two: Filing and serving the petition or application
The divorce petition must be filed at court along with the original marriage or civil partnership certificate.
The cost to issue the petition is currently £593. If you are on a low income you may be able to apply for help with fees or apply for the respondent to contribute to the costs.
Upon receipt of the petition the court will then serve the petition on the respondent with a form known as an acknowledgement of service, which gives the respondent the opportunity to acknowledge and oppose the petition if they choose to do so. The acknowledgement of service form needs to be completed and returned within 14 days of the petition being posted to the respondent. If the respondent does not acknowledge the petition within this timescale, then they can be personally served if they have not instructed solicitors.
Step three: Decree Nisi or Conditional Order
The petitioner can apply for decree nisi once the respondent has returned their acknowledgement of service.
If the respondent does not return their acknowledgment of service form, the divorce can still proceed. The petitioner will need to personally serve the respondent with the divorce petition or demonstrate to the court that the respondent has received the divorce petition.
The decree nisi is an order made by the court confirming that it is satisfied that the grounds for a divorce or dissolution have been established.
In most circumstances, both parties will also wish to obtain a financial order setting out how their finances should be divided following separation. It is important to note that the court is only able to make a financial agreement legally binding between parties once the decree nisi has been pronounced.
Step four: Decree Absolute or Final Order
Generally, six weeks and one day has to have lapsed from the date of the decree nisi being pronounced before the petitioner can apply for decree absolute. If the petitioner does not apply for a decree absolute within 12 months of getting the decree nisi then the delay will need to be explained to the court.
If the petitioner does not apply for the decree absolute, the respondent can apply but will have to wait a further three months.
The decree absolute is the order made by the court which establishes that the marriage has legally ended. It is important to remember once a marriage has been dissolved and both parties are free to re-marry then they are encouraged to make a new Will, as any previous Wills are revoked.
If financial matters have been agreed between both parties with the aid of a solicitor, then a ‘consent application’ outlining the agreed settlement can be filed at court once the decree nisi has been pronounced.
However, if financial settlements options have not been discussed with a solicitor or mutually agreed by both parties, it may be inadvisable to apply for the decree absolute straight away.
The risks of applying for a decree absolute before a financial agreement has been reached are as follows:
- Making financial claims against your former spouse or partner are restricted upon divorce and re-marriage.
- Unwanted tax consequences; and
- The loss of any dependent’s pension under a spouse or partner’s scheme before obtaining a pension sharing order by the court.
Dividing assets following divorce
During the divorce process, it is important also ensure that a legally binding financial order is made.
A financial order can deal with:
- Property
- Pensions
- Savings and investments
- Income/ Maintenance
- Debts and liabilities
The starting point for most divorce financial settlements is that the court typically aims to achieve a equal 50/50 split of the matrimonial assets for both parties. However, there may be reasons why an equal split of assets is not appropriate.
The court will take into account the following factors listed in section 25 of the Matrimonial Causes Act 1973:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
- The value of any benefit lost on the dissolution of the marriage
Whatever the final agreement made by a court or reached between the parties it is essential to ensure that the agreement is legally binding and approved by a judge within divorce proceedings.
