The divorce process explained – step by step information on filing for divorce, applying for the decree absolute and the decree nisi.
This article deals with divorce law in England and Wales only. If you live in Scotland or Northern Ireland, the laws about divorce are different.
Step 1: How to file for divorce
Divorcing couples can complete the divorce application form (Form D8) to file for a divorce in England and Wales. The form is available for download from the Government website. If you need help filling out the divorce form, a solicitor can help you.
To get divorced, you need to prove that your marriage has ‘irretrievably broken down’. This is established through one of five ‘grounds’ for divorce. The form asks you to select one of these grounds as the reason for your divorce.
You need to send your completed Form D8 to the Court with your original marriage certificate and the court fee. The process of preparing the documents and submitting them is called ‘issuing the divorce’.
Once you have issued divorce proceedings, it normally takes around 3 weeks for the documents to be processed by the Court. The time it takes for the Court to process your application will vary on depending on your individual circumstances, such as your location or how busy the Court is.
The Court will send a copy of the divorce papers to your partner. If you named a co-respondent in your divorce, the Court will also send a copy to them
Naming a co-respondent in your divorce
The Court and solicitors advise against naming a co-respondent.
You can name a ‘co-respondent’ if you are filing for divorce on the grounds of adultery. The co-respondent is the person your partner committed adultery with or contributed to their ‘unreasonable behaviour’.
You are allowed to name the other person in your divorce, but it is not usually in your best interests to do so. It could make your divorce take longer, more expensive and increase the emotional pressure on you.
If you are considering naming a co-respondent in your divorce, it is worth taking advice from a divorce solicitor before doing so. It could affect the process and there are practical issues to consider (for example, you’ll need to put the co-respondents address on the form). A solicitor can advise on how it could impact your divorce, and alternative steps you could take.
Do I have to tell my partner that I have filed for a divorce?
No, you don’t have to tell your partner that you have filed for a divorce. However, it is considered best practice to do so. The Court will send a copy of your completed divorce form to your partner so they will find out.
Whether you discuss the divorce petition with your partner before serving it is a very personal decision. However, it’s normally a good idea to discuss it with your partner beforehand.
If you are not comfortable speaking with your spouse, you could send them a letter or an email. Alternatively, you can ask a solicitor to make contact on your behalf.
Contacting your partner before you serve the divorce paper gives you both a chance to agree on the information in the paperwork. Generally speaking, agreeing who is going to apply for divorce and what the divorce application will say gets you off on the right foot.
My partner is not responding to the divorce papers – what can I do?
If your partner is refusing to respond to, or sign, the divorce papers a solicitor can help you take additional steps to progress your divorce.
If your partner is ignoring the divorce papers, you can arrange to have them personally served (handed over in person). An independent professional (called a process server) can give your partner the divorce papers. They then certify that your spouse has received the divorce papers so you can progress the divorce. This is proof to the Court that your spouse has seen the divorce documents, even if they never return the Acknowledgment of Service.
Alternatively, you could apply for a Court order stating that service of the divorce application is ‘deemed’ to have taken place. If granted, the order means your divorce can proceed without your partner returning the Acknowledgement of Service. You must support your application with proof that your partner received the forms. This could be through texts or emails from them.
Who pays to file for a divorce?
The Court charges a fee of £550 to file for divorce. The fee is payable when you submit the divorce application form to the court.
Sometimes the Court will agree to reduce that cost if your financial circumstances mean you cannot afford it – you have to send in a completed ‘Help With Fees’ Form to see if you are eligible.
The petitioner (the person who applies for divorce) is entitled to apply for their legal costs from their spouse (the respondent). This application is made by ticking the box requesting the respondent pays the costs of the divorce on Form D8.
Sometimes it will not be appropriate to claim your legal costs but often parties agree to share the costs. If there is a dispute about who should pay what, the Court will decide at a Court hearing.
Do I tick the box about applying for financial order?
On the divorce application, you should tick the box asking if you want to apply for a financial order. This reserves your right to bring a financial application in the future. It does not mean you are making an application there and then.
If you do not tick the box, you may be barred from resolving finances at a later stage (especially if you remarry).
Step 2: Applying for the decree nisi
The decree nisi is the penultimate stage of the divorce process. It means that the Court is satisfied that you have shown enough evidence that the marriage has irretrievably broken down but you are not yet divorced.
You make the application by sending two documents to the Court:
- an application for a decree nisi – Form D84
- a statement in support of your divorce petition – Form D80(A-E)
If your partner agrees to the divorce, you can fill in the application for the decree nisi and a second form confirming that the details in your divorce petition were true. The form you fill out depends on which grounds for divorce you selected on your petition.
Once prepared, these documents can be sent to the Court. They need to be approved by a judge. It normally takes around 4-12 weeks for the judge to approve (or reject) the application. If your application is approved, the judge will pronounce decree nisi.
After your decree nisi is granted, you must wait 43 days before you can apply for the ‘decree absolute’ (explained below, in step 4 ). The decree absolute is the legal document which formally ends your marriage and means you are divorced.
What happens if my application for decree nisi is rejected?
If your application for a decree nisi is rejected, you might need to supply further information to the court. You should receive a letter explaining the situation and what you need to do next.
What if my spouse doesn’t agree to the divorce?
If spouse does not agree to the divorce (‘defends’), you can complete an application for decree nisi but you and your spouse will have to attend a Court hearing. The judge will listen to you and your spouse and decide if a decree nisi should be granted. You may be asked to file statements.
Step 3: Agreeing how to divide your assets on divorce
You can decide how to resolve your finances at any stage of the process but the Court will not approve a draft financial settlement (called a consent order) until you have decree nisi. If you cannot reach an agreement, you can apply to the Court help you do so.
There are various practical matters to consider:-
- Where will you live?
- Is it possible for either of you to keep the family home or should it be sold?
- Would you be able to get a mortgage in your sole name?
- Do you have other properties, investments and savings?
- Do you earn enough on your own to meet your monthly outgoings or will you require maintenance?
- Do you have any pensions?
- Will you be eligible for any benefits once separated?
- Will you be eligible for any child maintenance?
The Court will only approve financial settlements that are fair on both parties. The Court will also consider in particular the needs of any children you may have.
You can apply, through the courts, for a legally binding settlement which divides your assets.
Step 4: Applying for the decree absolute
Either partner may apply for the decree absolute to end the marriage after decree nisi is granted. The decree absolute is the legal document which formally ends your marriage and means you are divorced.
There are different time limits to apply within, depending on whether the petitioner or the respondent applies. The petitioner can apply for the decree nisi to be made absolute 43 days after it was granted. The respondent can apply after an additional 3 months (on top of the 43 days) has passed.
What happens after I receive a decree absolute?
When you receive your decree absolute, you are officially no longer married. You can get married again if you wish to.
Remember that as soon as you are no longer a spouse, you no longer have automatic rights of inheritance (whether under a Will or the Intestacy Rules) or some of your spouse’s pension. It is therefore advisable to resolve your financial settlement in advance of the decree absolute.
How long does it take to get a divorce?
Divorce takes around 9 to 12 months to complete in normal circumstances. This includes time to resolve financial matters. There is no such thing as a “quickie divorce” in the UK.
A typical divorce in the UK may take around 12 months to complete. However, the amount of time it takes for your divorce to be granted depends on your individual circumstances.
Things that can slow down the divorce process include:
- Backlog in the Court administration
- Lack of cooperation between you and your spouse
- If you have complex assets.
Some factors which can slow down the divorce process are outside your control, but there are steps you can take to reduce the risk of delays. Clear, open communication between both parties and their respective solicitors is important to help keep the process moving forward.
How much does it cost to get a divorce?
The cost of divorce and reaching a financial settlement varies. It depends on your individual circumstances.
Fixed court fees are payable in any divorce, even when the divorcing couple reaches an agreement between themselves. The cost of filing for divorce is currently £550.
If you need advice from a solicitor you will also need to pay the solicitor’s fees (which vary). Typically, if you are going through a solicitor, their fee is based on factors including:
- How long the process takes
- The complexity of the advice you receive
- Time to prepare any paperwork or letters
- Time spent advising or representing you
- The experience of your solicitor.
Your solicitor should be clear about the cost of their advice.
At Tees, we’ll let you know how much the process should cost, before you start, so that you can make an informed decision about whether or not to proceed. If your situation develops and we think the cost will go up, we will let you know well in advance so that you do not receive an unexpected bill.
Can I get legal aid for divorce?
Legal aid is a government scheme, where the government pays part or all of your legal costs. To qualify for legal aid, your need to meet certain requirements.
Legal aid is not normally available for divorce . However, if your case involves domestic violence, child abduction, forced marriage or child protection issues you might be eligible for legal aid.
Legal aid is available for mediation but it is means tested.
How to get a divorce settlement without going to court
Many divorcing couples don’t need to go to Court to reach a financial settlement. The agreement can cover division of your financial assets (such as your home, pensions and savings) and provision for your children.
The Court will need to approve your agreement, so that it is binding, final and enforceable.
This is important in case either partner needs to rely on the agreement later on. For example, you might need to go to court if your former partner is not following the terms of the agreement or wants to make a change to the agreement.
A solicitor can create a legally binding agreement both partners are happy with. The agreement can be used in court if required. It provides reassurance and security for both partners. It means you can rely on or enforce the agreement later on and to prevent your spouse coming back in the future if your financial situations change.
Alternatives to financial proceedings through the Court include:
- Collaborative Law
- Negotiation – directly or indirectly through solicitors
These alternatives involve a solicitor, and aim to reach a fair agreement both partners are happy with.
If you need advice about your options regarding divorce, give us a call. A dedicated divorce law solicitor will outline your options and tell you how we can help.
Come in and see us for a FREE 30 minute face-to-face consultation about your options. Alternatively, if you want us to take a closer look at your situation, for a fixed fee of £150 + VAT, we can talk with you for up to 90 minutes.