How Does Divorce Work?
06 July 2016
This guide explains how the divorce process works in England and Wales. By understanding what will happen and when, it can really help you to feel more in control.
Can I Get Divorced?
First and foremost, you'll need to have been married for a least a year before you can get divorced. If not, you'll have to wait until one year of your marriage has passed. You could consider annulling your marriage before one year.
You'll also have to be domiciled (treat a specified country as a permanent home) in England or Wales to get divorced here. As British nationals, even if you both work abroad, you can get divorced here in England or Wales because you are still domiciled here in the UK.
Alternatively, you could apply for the jurisdiction for your divorce to be in England or Wales if you have a good reason to or you have a good connection with the UK. This is quite complicated though, so it would be best to get legal advice from a specialist Divorce Solicitor.
The Divorce Process Starts with a Divorce Petition
You or your spouse can apply for a divorce but whoever applies for the divorce petition will pay the Court fee. This could be a consideration when deciding who applies for divorce, or you could agree to split the Court fee between you.
Either way, the person who makes the application to the Court for divorce is known as the Petitioner and the other person is known as the Respondent.
You'll need Form D8, if you are managing your divorce yourself. You can get this from from HM Courts and Tribunals Service or if you are using a Solicitor to manage your divorce for you, they will complete this form for you.
The Five Facts of Divorce
Once you decide to get a divorce, you'll need to decide on one of the five facts that support the fact that your marriage has irretrievably broken down. The five facts are:
- Unreasonable behaviour
- Separation for two years with agreement to divorce from your spouse
- Separation for five years without agreement to divorce from your spouse
Divorce in England and Wales is still fault based. There is a move toward providing a 'no fault' divorce, which would allow for neither party to have to take the blame, but that is not the case currently. Because of this, you'll have to choose a fact to support why your marriage has ended.
If you select adultery as the reason for your divorce, then that person will be named on the divorce petition and a copy of it will be sent to them, along with a copy going to your spouse.
Responding to a Divorce Petition
When you receive the divorce petition, as the Respondent, there are a number of things that you have to do within certain time limits.
You must send the Form D10 back to the Court within 8 days. This includes the day you receive the divorce petition. This is the acknowledgement of service and tells the Court you've had the divorce petition and lets them know what you plan to do.
You can choose to agree with the divorce or defend the divorce petition and you'll need to outline whether there are agreements in place about any children.
After you've sent back Form D10, if you decide to defend (also known as contest) the divorce, you have 29 days, including the day you received the divorce petition, to send a defence to the Court and the Court fee which is £245.
You can file a divorce petition yourself. You may want to do this if you have evidence of adultery but you'll also need to pay the Court fee for a divorce petition which is £550.
If you do nothing, after 21 days the divorce will proceed anyway unless the divorce petition relies on 2 years separation or adultery. In both these cases, your spouse will need to consent.
The Decree Nisi
If your divorce petition is not defended, as the Petitioner, you'll need to apply for the Decree Nisi once you've received the Form D10, Acknowledgement of Service.
A Decree Nisi is an Order from the Court that gives the date your marriage will end.
To apply for a Decree Nisi, you'll need to complete the Form D80. It is a statement that confirms that all the information in the Acknowledgement of Service is correct and true.
The Court will review the application and as long as there is no good reason not to, the pronouncement of the Decree Nisi will be scheduled in about five weeks' time. Neither of you will need to be present for this.
The Decree Absolute
After the Decree Nisi has been issued, you have six weeks and one day to wait until you can apply for the Decree Absolute. The Decree Absolute ends your marriage, but it does not end the financial commitment between you.
It is for this reason that there is a six week delay between the Decree Nisi and the Decree Absolute so you have time to come to agreement about your finances.
It's really important to make sure that your financial arrangements are in place before you apply for the Decree Absolute. Even if you have not used a Solicitor to get divorced, using a Solicitor to manage the divorce financial arrangements can ensure that you get a fair settlement.
The divorce process itself is relatively straightforward and if you both agree to the divorce then you could manage the process yourself. If your spouse is defending the divorce, you should get legal advice from a specialist Divorce Solicitor to ensure that you get a fair financial settlement.
Also see the Court Process for Divorce Financial Orders.