Families and divorce

The divorce process

Wedding cake with a divide between the bride and groom

How do I get divorced?

Acknowledging that your marriage has come to an end is a very difficult decision to reach.  Below is an explanation of the divorce process and some of the key legal points you should be aware of before you start.

How do I apply for a divorce?

You need to complete an application form, known as a divorce petition (Form D8) and send this to the court.  

All forms can be downloaded from the court’s website.  Alternatively, you can complete a divorce petition online using the government’s portal here.  Your original marriage certificate will usually need to accompany your application.

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Who is the petitioner in a divorce?

The petitioner is the person who is applying for the divorce.  The person who is sending a divorce petition to the court.

Who is the respondent in a divorce?

The respondent is the person who receives a divorce petition from their spouse. 

What is the process for getting divorced?

The petitioner completes a divorce petition and send this to the court.  This will be processed by the court and a sealed (officially stamped) copy will be sent to both the petitioner and the respondent.

Alongside the sealed divorce petition, the respondent will also receive an acknowledgement of service form to complete and return to confirm they have received the paperwork.  The respondent will need to answer some questions, such as whether they agree with the information the petitioner has given in the divorce petition.

Once the respondent has returned the acknowledgement of service to the court, the petitioner can apply for decree nisi.  This is the penultimate stage of the divorce process.  Decree nisi being pronounced means that the court is satisfied that you are entitled to a divorce.

In order to apply for decree nisi, the petitioner needs to complete and return:

  • an application for a decree nisi (Form D84)
  • a statement in support of divorce (Form D80(A-E), depending on the fact relied on in their divorce petition, which is explained below)

The application for decree nisi is self-explanatory.  The statement in support of divorce asks you to confirm that everything you said in your divorce petition remains accurate and true.  

Six weeks and one day (43 days) after decree nisi is pronounced, the petitioner can apply for decree absolute.  Decree absolute is the legal document which formally brings your marriage to an end. It is only on pronouncement of decree absolute that you are divorced.

What do I need to prove in my divorce petition to get divorced?

You need to prove to the court that your marriage has ‘irretrievably broken down’.  This is the only ground for divorce in England and Wales.

There are five facts on which you can rely to establish that your marriage has ‘irretrievably broken down’.  These are:

  • Adultery: your spouse has committed adultery with a member of the opposite sex and you now find it intolerable to live with them 
  • Unreasonable behavior: your spouse has behaved in such a way that you cannot reasonably be expected to live with them
  • Desertion: your spouse has deserted you for at least two years 
  • Two years’ separation with consent: you and your spouse have been separated for a continuous period of at least two years and you both agree to the divorce
  • Five years’ separation: you and your spouse have been separated for a continuous period of at least five years

The divorce petition will prompt you to choose one of these options as your reason for seeking a divorce.

Is there anything else I need to be aware of when completing my divorce petition?

Co-respondents

If you rely on the fact of adultery, the divorce petition will ask whether or not you want to name the person your spouse has committed adultery with, known as a co-respondent.  You can name them, but it’s usually not a good idea.  It raises practical issues, could make your divorce take longer, increase your legal costs and cause additional emotional pressure for both of you.

Who should pay for the divorce?

The petitioner is entitled to apply for their legal costs to be paid by the respondent.  If you wish to, you should tick the box requesting that the respondent pays the costs of your divorce on your divorce petition.  Common claims are:

  • an order that the respondent pays your legal costs in full
  • an order that the respondent pays a fixed amount towards your legal costs
  • an order that the respondent pays a fixed percentage towards your legal costs
  • one of the above orders if your spouse unreasonably delays or defends the proceedings

It is not always appropriate for the respondent to pay your legal costs.  If you are willing to meet your legal costs yourself, you should leave this section blank.  

Often a divorcing couple will agree to share the costs between them.

If there is a dispute as to who should pay the legal costs, the court will decide at a hearing.  This is not usually cost-effective and independent legal advice should be sought before taking this step.

Working to resolve disputes

There are a range ways you can do this which include: mediation, collaborative divorce and arbitration.  Many divorce cases do not go all the way to a final hearing in a court. If you can avoid going to court, it will likely be quicker, less stressful and save you money.

Should I tick the box to apply for a financial order?

Yes!  

Ticking this box does not initiate a formal application for the court to decide a financial settlement.  It merely reserves your right to bring a financial application in the future.  This could be an application to the court at a later date.  Alternatively, it could be asking the court to convert a financial agreement you reach between you, into a legally binding and enforceable order without the need for court hearings.

If you do not tick this box, you may be barred from resolving the division of your assets and liabilities between you at a later stage (e.g. if you re-marry).

Do I have to tell my spouse that I am applying for a divorce?

It is considered best practice to tell your spouse that you are applying for a divorce.  

Contacting your spouse in advance gives you both the chance to agree on the information contained in the paperwork being sent to the court.  This will avoid having to amend your application at a later date if your spouse opposes what you have said.  Working together from the start will, hopefully, set the tone for an amicable divorce.  

If you don’t feel comfortable speaking with your spouse directly, you could send them a letter or an e-mail.  Alternatively, any lawyer assisting you will make contact with them on your behalf.

If you feel that you would be placed at risk by discussing your application for divorce with your spouse, then you should not do so.

Your spouse will find out eventually, as the court will send them a copy of your divorce petition once it has been received and processed.  

What should I do if my spouse does not respond to my divorce petition?

Additional steps will be needed in order to progress your divorce.  The court will either need to be satisfied that your spouse is aware you have issued divorce proceedings, or that you have made every effort to make them aware, but have been unable to trace them.

If you spouse ignores your divorce petition, you can arrange to have the paperwork personally served on them.  This involves a process server going to hand the paperwork to them in person.  The process server will certify to the court that they have received your divorce petition.  This is the proof the court needs.

Alternatively, you can ask the court to make an order that your spouse is ‘deemed’ to have received the paperwork.  You will need proof that they have received your divorce petition, such as a text message or an e-mail.  If granted, the order means the court is satisfied that your spouse has received your divorce petition.

What should I do if my application for decree nisi is rejected?

This depends on the reason for your application being rejected.  You should receive a letter from the court explaining the reasons and what you need to do next.  For example, you may need to answer a question raised by the judge or supply additional information.

What if my spouse doesn’t agree to a divorce?

They would have to ‘defend’ the divorce proceedings.  You can still apply for decree nisi, but you will both need to attend a court hearing.  The judge will listen to why you think you are entitled to a divorce and also why your spouse thinks you are not.  You may be asked to prepare formal witness statements setting out your case.

What happens after I receive decree absolute?

Once you receive your decree absolute, you are officially no longer married.

You should be aware that, as soon as you are divorced, 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, strongly advised to resolve a financial settlement before decree absolute is pronounced.

How long does it take to get divorced?

In normal circumstances, approximately 9-12 months.  This includes taking time to resolve a financial settlement by way of negotiation.  

However, the amount of time it takes will depend on your individual circumstances.  If you require the court’s assistance in resolving financial matters, it can take 18-24 months.  

What makes a divorce take longer?

Some factors which can slow down the divorce process are outside your control.  However, there are steps you can both take to reduce the risk of delays.  Clear, open communication between both of you (and your lawyers, if applicable) is important to help keep the process moving forward. 

What is a ‘quickie divorce’?

A ‘quickie divorce’ is a myth.  There is no such thing in England and Wales. 

How much will it cost to get divorced?

There is a court fee of £550 to lodge your divorce petition at court.  Sometimes the court fee will be reduced, depending on your financial circumstances.  You will need to complete a ‘Help With Fees’ form (Form EX160) to see if you are eligible. 

If you would like a lawyer to assist you with your divorce, their charges will be in addition to the court fee.  Your legal fees will depend on their rates.  

At Tees, we offer a fixed fee of £750 + VAT for a straightforward, uncontested divorce.  If your situation develops and additional legal costs will be incurred, we will let you know in advance so you don’t 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, you must meet certain requirements.  As well as a means-test, you must be able to demonstrate some risk of harm.  For example: that you have been subjected to domestic abuse, or that there are child abduction issues.

If you think you may be eligible for legal aid, you should contact a legal firm which has a legal aid contract.

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