Specialist Family Solicitors In Divorce and Separation

This step is the request to the court to start the divorce. The application (previously know as the petition) is the formal document that applies for the divorce and contains amongst other things the details of both parties and the reason for seeking the divorce. There is only one ground for divorce and that is that your marriage has broken down irretrievably.

The person applying for the divorce is referred to as the applicant (formerly the Petitioner). The other spouse is referred to as the Respondent.

It is good practice to send a copy of the divorce application to the other party to see if the details can be agreed before sending it to the court to issue the divorce proceedings so as to try to avoid a defended divorce. The divorce application is then sent together with the original marriage certificate and the court fee, currently £593, to the court, or the details are entered on the court portal and the marriage certificate uploaded to the court portal, to start the divorce process.

The court checks the documentation and, if they are satisfied that it complies with all the requirements, they officially ‘issue’ the divorce. They will then send a copy of the divorce application in the post to the Respondent, or by email if an email address has been provided, together with a form for the Respondent to complete and return to the court.

This form is known as the Acknowledgement of Service form, it can be completed via the court portal also, the court will provide the Respondent with details of how to do so.

The Respondent is required to return the Acknowledgment of Service form to the court within 7 days of receipt of the divorce papers, or longer if the court specifies a longer period, indicating whether or not they wish to dispute the divorce proceedings. If they do want to dispute the divorce they have to file another form called an ‘Answer’ within 28 days of receiving the application.

In the event the Respondent fails to return their acknowledgement form, it will be necessary to consider personal service of the papers by either the Court Bailiff or a process server. In many cases proving that the Respondent has received the divorce papers, by providing the court with a sworn statement from a process server or the Court Bailiff will be sufficient for the court to progress with the divorce even if the Respondent chooses to take no part in the process.

If the Respondent does not respond to the application, it will be important to make a note of any admissions by them that they have received it, i.e. text messages or emails that state they have received and read the divorce application or any reference in correspondence to the content of the divorce application. This may be sufficient for a statement to be provided to the court showing that the Respondent clearly has knowledge of the divorce proceedings but has chosen not to reply and for the court to allow the divorce to proceed without the Acknowledgement of Service being received.

When the Acknowledgement is received by the court (assuming it is returned by the Respondent) the court will notify the applicant or their legal representative, or notify them via the court portal, who must then confirm the facts in the original application are true and that there have been no changes since the application was signed and request that the court make a Conditional Order (what was previously known as Decree Nisi). The earliest date a conditional order can be applied for is 20 weeks after the divorce application.

The court office will pass the divorce application to a Judge for consideration. If the Judge is happy with all the documentation and the reasons for the divorce then he or she will sign the necessary form to approve the divorce and the court will set a date on which the first of the two ‘orders’ of divorce, the Conditional Order (formerly the Decree Nisi), will be pronounced in court.

It is not usually necessary for the parties to attend court to obtain the Conditional Order, the Judge will simply read out the list of names of the parties to the divorce in the court and ‘pronounce’ it. If however there is a dispute in relation to the costs of the divorce, then the court may require the parties to attend at the hearing to make representations to the Judge.

The Conditional Order is only the first stage of the divorce and it is just confirmation that the Judge is satisfied there are grounds for a divorce, the parties remain married until the Final Order (formerly Decree Absolute) is granted and in many cases, where there are outstanding financial issues to be resolved, the Final Order will come much later once there has been a financial settlement reached by agreement or ordered by the court.

Six weeks and one day after the Conditional Order, the applicant can apply for the Final Order, (previously called the Decree Absolute). Once this has been granted by the court, the parties are legally divorced.

If the Applicant fails to apply for the Final Order after six weeks and one day, then the Respondent can apply 3 months after that date, but it is usually preferable for both parties not to have the Final Order on the divorce until financial issues are resolved, because there are certain potential benefits such as life insurance, death in service benefits and widow’s or widower’s pensions which can be lost on divorce.

If the divorce is allowed to proceed undefended, which is usually the case, because both parties have agreed to the divorce, provided the parties complete and return the divorce paperwork quickly, a divorce can be obtained in 4-6 months. There is a mandatory waiting period of 20 weeks between the issue of the divorce and the application for Conditional Order. The Final Order can be applied for 6 weeks later, there may be reasons however why the application for the Final Order should be delayed, for example because the financial issues have not yet been resolved, and there are also occasions where the court has a back-log of cases, which can create delay. The divorce process is now dealt with at specified divorce centres where a number of Judges are considering the cases that are not defended so the timescale for divorce can vary greatly depending on the court workload and number of Judges available each day.

If the parties cannot agree or delays are made in the completion and return of papers to the court this can also extend the time it takes to complete a divorce.

You have to have been married for at least a year on the date you issue your application for divorce.

In April 2022 the divorce process changed to what is known as a ‘no fault’ divorce.  This means you can issue a divorce application immediately.  You do not need to cite reasons such as adultery or unreasonable behaviour as was the case previously and you do not have to have been separated for any period of time.  You simply have to confirm to the court that the marriage has broken down irretrievably.

There are two options, only one provides you with a formal ‘legal status’, that is judicial separation. This is in effect the same process as a divorce in that it will be considered by a Judge and financial claims can be made against the other party. Generally Judicial Separation is used by those who for religious or cultural reasons are not wishing to be divorced. The alternative is to enter into a Separation Agreement or Deed of Separation, this does not change your legal status, it is used most often by couples who do not wish to divorce immediately but wish to formalise their separation.

Usually the Separation Deed will specify a timescale within which one party will issue divorce proceedings and that the other party will consent. The separation deed can set out the financial arrangements, such as whether to sell a property, how to divide the proceeds of sale and any other assets and whether maintenance is going to be payable. Couples need to be aware however that, even if you have such an agreement and set it out in a deed, when a divorce is issued the court can still make orders about financial issues.

This is the case even of you have already reached an agreement, if for example the court does not agree that your agreement is appropriate, or, the other party changes their mind about what you agreed when you separated, the court may take into account an agreement set out in a separation deed but the court is not bound by it so you do need to think carefully about whether it is better to divorce as soon as possible.

It is invariably better for both parties if you divorce at the time you separate because it means an agreement can be made legally binding on both of you in a consent order, there is no ‘comeback’ at a later date and so it provides certainty for both parties.

You can now issue a divorce via an online portal and scanned copies of documents can be uploaded so you do not need to provide paper copies.

You may be aware that the divorce process has changed. In April 2022 what is commonly referred to as ‘no fault’ divorce was introduced.

The law has not in essence ‘changed’ in that the fundamental requirements for divorce remain which are that you must have been married for more than a year, your marriage must be a legally recognised marriage in this country and your marriage must have broken down irretrievably.

The grounds for divorce were always that the marriage has irretrievably broken down, previously however you had to ‘prove’ this in one of 5 specified ways (unreasonable behaviour, adultery, desertion and separation of 2 years, if you both consented, or 5 years if one party did not consent). Now you do not need to use any of these grounds to show the marriage has broken down irretrievably, you simply have to confirm that it has.

This can be a joint application if you wish, or a sole application by either party to the marriage.

The terminology for the formal stages of divorce have also changed but there are still 2 formal stages.

1. What used to be ‘Decree Nisi’ this is when the court has considered your divorce application and is satisfied you are entitled to a divorce. This is now known as the ‘Conditional Order’. The Conditional Order can be applied for 20 weeks after the divorce has been issued.
2. What used to Final Order’. The Final Order can be applied for, at the earliest, 6 weeks after the date of the Conditional Order.

When a relationship breaks down either party can issue divorce proceedings or you can make a joint application with your spouse if you both agree to a divorce. The advantage to issuing the application is that you retain control in so much as it is possible, over the timescales. You will be required to pay the court fee which is currently £593.

Once the ‘applicant’ has filed for divorce, (sent the application and accompanying documents to court with the £593 court fee or used the court portal) a copy of the documents is sent to the ‘respondent’. The respondent is asked to complete and return an acknowledgement of service, confirming that the documents have been received and stating whether he or she intends to defend the divorce.

Provided that the divorce is not being defended, the applicant then confirms that all the details on the documents are true and applies for the Conditional Order which is the first formal stage of divorce. The Conditional Order can only be applied for once a period of 20 weeks has passed from the date of the application for divorce being issued. A Judge then considers the paperwork and decides whether the marriage has broken down irretrievably.

When the Judge is satisfied that the grounds for divorce are made out then he or she will set a date when a ‘Conditional Order’ will be given. Six weeks after that, the applicant can apply for the Conditional Order to be made final. Once the Final Order has been granted, you are divorced (and free to remarry should you wish). It is usually not advisable to apply for the Final Order until you have resolved any financial issues arising out of the divorce however in order to ensure your financial position is protected so far as is possible.

If you and your spouse both agree to get divorced, and can reach an agreement between yourselves on finances and looking after any dependent children, you should be able to get divorced without having going to court in person. The divorce itself is dealt with by the court as a paper exercise and if you have an agreement on financial issues this can be drafted into a consent order and sent to the court for the Judge to approve without the parties needing to be present in court.

You remain married up until the moment when the Final Order is made, finalising the divorce. The applicant can stop the divorce proceedings at any point prior to that and apply to withdraw the application.

Save for a very small number of cases, for example, where domestic violence has been a significant feature, legal aid is not available for divorce and family cases. If you are on a low income you may be able to claim exemption from the £593 Court fee required to issue the divorce proceedings however.

Provided the divorce is not defended by your spouse the divorce process itself is purely a paper process which typically takes around five to six months to complete. It is dependent on the court workload to some extent and also how quickly you and your spouse deal with the necessary documentation. Negotiations over financial arrangements can often take longer than this however and although you can apply for your Final Order before you have resolved financial issues it is often advisable to wait until a financial agreement has been finalised.

You are officially divorced once the Final Order is granted. The grant of the Final Order is officially recorded (in the court where the divorce was granted and in the Principal Registry of the Family Division in London) and you are each sent a copy.

The financial arrangements can be agreed separately at any time – before you start divorce proceedings, at the same time, or after the divorce itself has been finalised – though the financial arrangements cannot be finalised until after the Conditional Order. It is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the Final Order (the order finally ending your marriage) is made. This is because potential benefits such as widow’s or widower’s pensions and life insurance benefits can be lost in certain circumstances once the Final Order is granted. For this reason it is usual to allow the divorce to proceed to the Conditional Order stage but not then apply to have the Conditional Order made final until financial issues have been resolved.

No. Conduct of this nature will not have any impact on what a court will order in terms of finances. Bad behaviour by either party will only have a bearing on the financial settlement if it is very extreme and exceptional, or is of a financial nature: hiding assets for example or intentionally delaying or frustrating the court process. Judges are not influenced by how the parties have behaved towards one another when it comes to sharing out the assets but if one party has deliberately done something to try to defeat the other person’s financial claims or is not complying with court orders or the timescale set by the court then that may have an impact. Not providing full and frank financial disclosure is particularly frowned upon and the courts have been willing to overturn decisions where it has later transpired that there has been non-disclosure.

No, you do not have to reach a final agreement about arrangements for your children before you can be divorced but, in practical terms, you will need to sort out what is going to happen once you and your ex-spouse live in separate homes. Both parents share parental responsibility for the children and need to agree the arrangements for the children; where they will live and how much time they spend with the other parent. If the parents cannot agree then either parent can apply to the court to ask the court to make an order about where the children live and how much time they spend with the other parent. You will need to attend at an initial mediation information meeting first and the mediator will invite the other parent to attend mediation to try to resolve the issues but if you cannot agree then the court will make an order for such arrangements as it considers to be in the best interests of the children.

Yes.  In April 2022 the divorce process changed so that you no longer need to provide ‘reasons’ for the divorce, ie the adultery or unreasonable behaviour of your spouse. Since April 2022 you simply need to confirm to the court that in your view the marriage has broken down permanently or ‘irretrievably’.

No. You will however need to issue a divorce and have reached the Conditional Order stage (when the Judge agrees that you have grounds for divorce) before the court will be able to consider any financial agreement that you have reached. In the majority of cases you need to have divorce proceedings issued before you can ask the court to make any orders about financial issues.

Yes. Before you can make an application for the court to deal with finances you have to attend at least one meeting with a mediator. Many couples find that mediation is successful and it is generally much faster and less costly than discussing matters through your lawyers. If mediation doesn’t work, the family courts are set up in a way that encourages you to reach agreement and the Judge will try and help you do this but eventually there will be a ‘trial’ and the court will decide. A Judge might need to decide which of you is telling the truth if there is a factual dispute, and what should happen in your case.

They will say what assets are really worth and how they should be divided or reallocated and how much, or how little, each of you is able to provide for yourself and to what extent the other person should support you.

Primarily the court will be looking at the financial requirements of each of you, the Judge will consider what is fair of course but this can be a secondary issue if there are limited resources available. You will have heard cases of ‘being taken to the cleaners’; this is not because the law says it is right that one party takes all the assets, it is because there wasn’t enough to go around and the Judge decided one party needed it all. It is far better, and cheaper, to reach an agreement. The factors set out by law to be considered when dividing the financial resources on divorce are open to wide interpretation.

No. When a relationship breaks down either of you can issue divorce proceedings. You don’t need the other party’s consent and cases where a divorce is refused by the court are extremely rare.