This article is intended to provide information about the divorce process only, and does not include other matters you may need to resolve such as child arrangements or a financial settlement.
Basic Points to start a divorce
In order to get a divorce in England/Wales you must:
- Have entered into a legally binding marriage spouse. If you married abroad and the marriage follows the law of that country then the English courts should recognise it as valid.
- have been married for at least a year;
- be domiciled in England/Wales or have been habitually resident here for at least one year (you may need specialist advice if you are not sure about domicile/habitual residence)., and
- be able to prove that your marriage has irretrievably broken down (this is the only ground for divorce).
Proving irretrievable breakdown
You have to show that one of the following five facts apply, either:
- your spouse has committed adultery and you can no longer tolerate living with him/her. You do not have to name the third party concerned; (adultery) but your spouse must be prepared to admit this
- your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her; (unreasonable behaviour)
- your spouse has deserted you for a continuous period of at least two years (desertion – rarely used and best avoided)
- you and your spouse have lived apart for a continuous period of at least two years, and your spouse consents to the divorce (2 years separation with consent), or
- you and your spouse have lived apart for a continuous period of at least five years. Your spouse does not have to consent to the divorce in this case (5 years separation).
Step 1 – Starting a divorce
You/your solicitor will need to prepare a Divorce Application (D8 form) based on one of the 5 facts referred to above. You can get this form from the county court office or download them from http://hmctsformfinder.justice.gov.uk. There is also an online service now available. See https://www.gov.uk/apply-for-divorce for more information.
Where a solicitor is instructed sometimes the draft divorce application is sent to the Respondent for approval first. This is to help the case proceed smoothly.
To issue a divorce the following papers are lodged at one of the regional divorce centres (check the gov.uk website for details of which centre you should use):
- the original and two complete copies of the divorce application
- your original marriage certificate, or a certified copy. NB: photocopies are not acceptable. A certified copy can be obtained from the church or Registry Office were you married. If the certificate is not in English you will also need a formal translated copy.
- Payment of the fee (currently £550) or an EX160 fee exemption form if you are on benefits or low income. See court leaflet EX160A for more details of the rules about fee exemption.
NB: If the divorce application has not been completed correctly, or the court is not satisfied with the supporting documents it will return all the papers you have submitted to amend and resend. This will cause delays so it is important to check the papers are completed properly and that you have done everything set out on the checklist at the end of the D8.
Step 2 – Serving the Papers
Once the court has processed the papers you have lodged, it will arrange to serve your spouse by post with the following:
- A copy of the divorce application
- A blank Acknowledgement of Service form
- Notice of Proceedings and explanatory notes.
If the Respondent does not reply to the divorce (see Step 3) you still need to show that he/she has been served with the papers before you can proceed. You may need to consider personal service by process server or court bailiff; or apply to have service ‘‘dispensed with’ or ‘deemed’. These options will attract further fees and you should get legal advice before proceeding.
Step 3 – Acknowledging the Papers
Your spouse (the Respondent) has 8 days from receipt of the papers to return the completed Acknowledgement of Service form to the court. He/she can indicate on the form if they intend to defend the divorce (in which case they have to file an Answer), although this is rare.
The Respondent may need legal advice before returning the Acknowledgement, particularly if the Petitioner has applied for costs in the Petition, and/or if they are unhappy about what is being said in the divorce papers.
Once the court has received the Acknowledgement of Service, it will send a copy to you/your solicitor. Assuming the divorce is not to be defended, you can proceed to step 4.
Step 4 – Applying for Decree Nisi
The Petitioner has to fill in and sign an application form (D89) and a Statement in Support of Divorce.
There are 5 different types of statement numbered D80A to E depending on what your petition was based on. E.g. adultery would be D80A, unreasonable behaviour D80B, etc. See the justice.gov website for more information. The layout is based on questions that the petitioner has to answer. Usually the signed Acknowledgement form is attached as an exhibit. This proves that the Respondent has received the papers.
You/your solicitor then need to lodge at court:
- The original signed statement attaching the Acknowledgement
- The signed application form
Step 5 – Decree Nisi granted
If the District Judge is satisfied with the papers received, he will issue a Certificate of Entitlement to a decree setting out the date/time when decree nisi will be pronounced at court. It will also confirm whether a costs order is likely to be made.
It is not usually necessary for either party to attend court unless for instance they want to oppose the divorce (which is rare) or dispute the Petitioner being able to get a costs order against the Respondent. On the appointed day, unless either party raises an objection, the District Judge will pronounce decree nisi. The court office will send sealed copies to you/your solicitor and the Respondent.
Step 7 – Applying for Decree Absolute
Six weeks and one day after the date of decree nisi, you/your solicitor can apply to the court for decree absolute by completing and sending in a signed application form D36.
NB: If there are financial/property matters to resolve, make sure you have legal advice before applying for decree absolute.
If you do not apply for the absolute within three months from the date you can first do so, the Respondent can apply instead.
Step 8- Decree absolute is granted
Once the court receives the application, it is usually processed quickly with sealed copies of the decree absolute being sent out within a few working days. This is the final divorce document confirming your marriage is dissolved. You are at that stage divorced and free to remarry (if you wish!)
PLEASE KEEP THE DECREE ABSOLUTE SAFE FOR FUTURE REFERENCE
Click the link below to download the leaflet.