This outlines the process for obtaining a divorce in England & Wales. Getting a divorce in Scotland or Northern Ireland is different from England & Wales. We will refer you to expert lawyers in those jurisdictions if necessary.
A legal divorce, or dissolution of marriage, is an order of the court that ends a valid marriage. By contrast, an annulment is a legal declaration effectively that the marriage never technically existed and was never valid. The result in both cases is that the parties to the marriage are returned to single status and are free to remarry.
Before you apply for a divorce
Before you can file for a divorce in England & Wales, you must have been married for at least 12 months.
You must also check that yours is a marriage which is legally recognised in England & Wales. You will need your original marriage certificate or a certified copy as this will be lodged at court when the divorce process is started.
There are also certain jurisdictional requirements as to habitual residence and/or domicile. If you think this may be an issue, please read our “Forum Choice” page.
Current grounds for divorce
Currently, the law only provides one basis for divorce namely “that the marriage has broken down irretrievably”. There is no such thing as ‘irreconcilable differences’ under English divorce law.
However, in order to prove that the marriage has “broken down irretrievably”, you have to establish one or more of the following ‘facts’; that
• your spouse has committed adultery and you find it intolerable to live with your spouse (adultery);
• your spouse has behaved in such a way that you cannot reasonably be expected to live with them (unreasonable behaviour);
• your spouse has deserted you for a continuous period of at least two years immediately preceding the presentation of the petition (desertion);
• you have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and your spouse consents to a decree being granted (2 years separation by consent);
• you have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (5 years separation).
Can you obtain a no-fault divorce?
Currently, the concept of a “no-fault divorce” has not been introduced in England & Wales. Following Law Commission recommendations as long ago as 1990, Part 2 of the Family Law Act 1996, would have introduced a “no-fault” divorce, but the relevant provisions were not implemented and were later repealed. More recently a private members bill has been introduced with a view to reforming the divorce procedure but for the time being it remains unchanged.
What is a “quickie” divorce?
The term “quickie divorce” is used by the media, often in relation to celebrity divorces, to indicate a divorce obtained by agreement by the couple. The impression given is that there is a separate procedure which allows couples to obtain divorces more quickly than others, but in fact the procedure is the same for everyone.
Preparation of the divorce papers
Whilst it is possible to file for a divorce online on a “do-it-yourself” basis, obtaining advice from a specialist divorce and family practice will ensure that the divorce petition and other documents are properly completed and that you receive the correct divorce legal advice.
The clerks at the divorce court can help, but they cannot give you legal advice on your rights nor on how to complete the divorce documents. Problems can arise if the forms are incorrectly completed.
Filing the divorce application
The divorce is started by one spouse (then called the “petitioner”) lodging a document called a petition with the court, along with the relevant divorce court fees. The petition sets out the details of the marriage, the parties, any children and the grounds for the divorce.
The court “issues” the petition, stamping it and sending a copy to your spouse (then called the “respondent”). If there is a named third party they are called the “co-respondent”.
Acknowledgement of service
When the respondent receives the petition, they are required to fill in a form, called an Acknowledgement of Service, to confirm that they have received it and send this back to the court within 7 days. The court forwards a copy to the petitioner.
Contested and uncontested divorce
If the respondent agrees to the divorce, it will be called an undefended or uncontested divorce. If the respondent does not agree, then it will be called a defended or contested divorce and the respondent will have a further 21 days to file an Answer at court.
Confirming the petition
The petitioner swears an affidavit (the legal term for a statement under oath), confirming the contents of the petition, which is then sent to the court.
The court checks the divorce documents and if, it is an uncontested divorce and the documents are approved, will fix a date for pronouncement of the decree nisi. A decree nisi means that the court is satisfied that the reasons are sufficient for a divorce to be granted. It does not mean that the couple are divorced. It is not usually necessary for the couple to attend the court to hear the decree nisi being pronounced, unless there is a disagreement over costs.
Six weeks and a day after the date of the decree nisi, the petitioner can apply for the “decree absolute” which is the legal document that finally ends the marriage. If the petitioner does not apply then, after a further three months, the respondent can apply. The decree absolute is an important document and should be kept in a safe place.
How long does it take to get divorced?
If everything is agreed, and both parties complete and return the documents promptly, the court will normally take between 4 and 6 months to process the divorce from start to finish.
If there are disagreements, particularly over finances, then it can take longer because the decree absolute may be delayed until the finances have been resolved.
What other issues need to be dealt?
There may be disagreements over the children or over claims for financial settlements or child support. We will always try to resolve these either by negotiated agreement between solicitors, or by collaborative law or by mediation.