How to Get a Divorce
According to the Office for National Statistics there were 102,007 divorces granted in 2017 in England and Wales. The figures show that divorce among opposite-sex couples is in decline, but for same-sex couples the number increased from 112 in 2015 to 338 in 2016.
It remains essential that parties embarking on the process of divorce are able do so with confidence that they understand all aspects of the process so that divorce can be as fair, transparent and amicable as possible.
Below we take a look how to get divorced today (summer 2019) in England and Wales, and how this may be changed by the proposals that are likely to take effect in the near future.
Eligibility for divorce
To begin the divorce process you must have been married for at least one year – the one-year rule. You cannot get divorced if you have been married for less than 12 months; however, you may be able to have your marriage annulled within the first year if you meet certain criteria.
Grounds for divorce
Under Section 1 of the Matrimonial Causes Act (MCA) 1973, all grounds for divorce fall under a single umbrella category: irretrievable breakdown of the marriage. The same applies to dissolution of a civil partnership (S44 Civil Partnership Act 2004). The petitioner must state one of the following five facts as the reason for the irretrievable breakdown:
- That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent (although a petitioner from a same-sex marriage cannot use adultery as a fact)
- That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
- That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
NB: For information about the impending introduction of “no fault” divorce; scroll to the bottom of this page.
If you agree about the reason for the marriage breakdown, the arrangements for children and how your property will be split following the divorce, then you may be able to avoid going to a court hearing, but you will still need to file a petition through the court and await a judge’s ruling on your divorce application.
The Divorce Petition
Filing the divorce petition – also known as the D8 form – is the first step you must take in order to begin the divorce process. The spouse who initiates proceedings is known as “the petitioner” and the person who receives the form is known as “the respondent”.
This step of the process is extremely important as any mistakes made when applying can cause delays, extra court charges and even restrict your future rights.
If you are instructing a divorce solicitor, the petition will be sent by post; if you are filing the petition yourself, this can be done online. There is a £550 court charge to file the petition, plus any applicable legal fees. The petition must include a certified copy (or original) of the marriage certificate.
Once the divorce petition is filed, the following process will be set in motion:
- Court checks: The court will make sure your petition has been completed correctly – it will be returned if there are any errors or inconsistencies.
- The petition is issued: The petition will be issued (sent out) to the respondent. You will receive notice that the petition has been issued, a copy of the application (with the court’s official stamp), and your case number.
- Acknowledgement of service: The respondent receives the divorce petition along with an ‘acknowledgement of service ‘form.
- Response to petition: The respondent must fill in the form letting the court know whether they agree to the divorce or wish to defend it (prevent it) and whether they object to paying costs. The respondent has eight days to respond. If the respondent agrees to the divorce you can move onto step five below. If they wish to defend the divorce the defendant has 28 days to let the court know why they disagree to the divorce. If they do not complete an ‘answer to divorce’ form in that time, you can then move on to step five. In cases of defended divorce you may need to go to court so that a ruling can be made on whether the divorce can go ahead.
- Decree nisi application: You can apply for a decree nisi (the provisional divorce decree) once the acknowledgment of service has been received by the court and providing the respondent is not going to defend the divorce. The court will issue a decree nisi but it is important to note that you are still married at this point and will need to wait 43 days before applying for the decree absolute.
- Decree absolute application: After six weeks and one day from the granting of your decree nisi you can apply for a decree absolute. This is the official dissolution of the marriage. In some cases the decree absolute may be delayed until a divorce financial settlement has been reached.
If the court rejects your application for divorce, you will receive a ‘notice of refusal of judge’s certificate’ form. You will need to provide the court with more information about why you want a divorce. You may be able to do this in writing or you may be required to attend a court hearing. In this situation, seeking legal guidance from an experienced divorce solicitor is a wise option.
No Fault Divorce – what it could mean for divorcing couples
A bill that is due to be ratified through the Houses of Parliament, the Divorce, Dissolution and Separation Bill 2017-19, proposes reform of the current system so that instead of having to prove one of the five facts of divorce as set out above, the petitioner will simply need to provide a statement to confirm that the marriage has irretrievably broken down. There will be no need to apportion blame.
Other reforms proposed in the bill include:
- Modernising the language used in the divorce process; for instance, introducing a ‘conditional order’ and ‘final order’ to replace decree nisi and decree absolute respectively.
- Creating an additional pathway for joint-applications, i.e. divorce that can be applied for by both spouses when they are in agreement about the irretrievable breakdown of the relationship.
- Removing the ability for one person to contest a divorce.
The bill further proposes that the minimum period for the divorce process should be six months from the date the divorce petition is delivered to the court to the granting of the final order of divorce. This will effectively create an extended period for reflection and provide greater scope for reconciliation.
How can Wellers Law Group help
Wellers Law Group brings a sensitive yet pragmatic approach to divorce law proceedings. Whether you want advice regarding how to get a divorce, children arrangements, or divorce financial settlement matters, we can help you understand all the necessary processes so that you may achieve your aims.
We offer a fixed fee, no obligation one-hour interview so that we may provide you with initial advice and suggest appropriate options for your next course of action.
Contact us today for help or advice on 020 8290 7992 for our Bromley team, 01732 446374 for Sevenoaks, 020 7481 6393 for central London or 01483 284567 for our Surrey team.
Alternatively, you can email your enquiry to firstname.lastname@example.org.