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.
As of 6 April 2022 there is no longer a need to rely on one of the following five facts:
- 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).
Now all you need to do is provide a statement (in practical terms tick a box) to state the marriage has broken down irretrievably.
Can you obtain a no-fault divorce?
Yes, following the change in law by the Divorce, Dissolution and Separation Act 2020 “no-fault divorce” was introduced in England & Wales.
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 application 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 (referred to as “applicant”) lodging an application with the court, along with the relevant divorce court fees.
You can have a joint application from 6 April 2022 and if so you will have applicant 1 and applicant 2. Applicant 1 completes the application and it is sent to applicant 2 for approval.
The application sets out the details of the marriage, the parties and confirmation that the marriage has irretrievably broken down.
The court “issues” the application and if you are not making a joint application at this stage sends a copy to your spouse (then called the “respondent”). There is no longer the option to name a third party there are therefore no longer “co-respondents”.
Acknowledgement of service
If the application is made by one spouse when the respondent receives the application, 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 14 days. The court forwards a copy to the applicant.
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. Since 6 April 2022 there are extremely limited circumstances that a divorce can be defended/contested and no longer will a spouse be able to argue that the marriage has simply not broken down.
Cooling off period and confirming the application
There is a 20 week cooling off period from the date application is issued until the applicant can progress the divorce. This is to allow time for reflection. Once these 20 weeks have passed the applicant has to complete a statement confirming the contents of the application, which is then sent to the court.
Conditional order (previously referred to as Decree Nisi)
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 conditional order. A conditional order means that the court is satisfied that the application is 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 conditional order being pronounced, unless there is a disagreement in respect of costs (which would need to be claimed by a separate application and no longer is there an option on the divorce application itself).
Final Order (previously known as decree absolute)
Six weeks and a day after the date of the conditional order, the applicant can apply for the “final order” which is the legal document that brings the marriage to an end. If the applicant does not apply then, after a further three months, the respondent can apply. The final order 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 6 -9 months to process the divorce from start to finish.
If there are disagreements, particularly in respect of finances, then it can take longer because the final order may be delayed until the finances have been resolved. Obtaining the final order before the finances are resolved may lead to negative financial consequences and we therefore strongly recommend you take legal advice before proceeding.
What other issues need to be dealt with?
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.