Steps to obtaining a divorce
In order to obtain a divorce there are steps which need to be completed. This guide has been written so you can know what is happening and to help you avoid unnecessary stress and expense. Be aware that you can also have a legal separation, which is simpler and gives all the family some breathing space and time to get used to being apart. You can still go through with a divorce later.
Try to agree with your husband or wife why you are getting the divorce, how you will look after the children and how you are going to split your possessions such as property and money. This will mean less paid-for time with solicitors - you may be able to manage without solicitors at all.
In order to claim a divorce you must be able to show an ‘irretrievable breakdown of the marriage.’ This must be evidenced by one of five facts listed below:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
This means that your husband or wife has had sexual intercourse with another person. This must have been voluntary - if they were raped it isn’t called ‘adultery.’ You must also show that they are ‘intolerable to live with.’ This means that you must present a case to show that you cannot go on living with them due to something that they do or don’t do.
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
This point refers to your husband’s or wife’s unreasonable behaviour. This is a wide area and could be based on things such as; physical violence, a collection of trivial acts which are done by your partner (this could even be excessive DIY refurbishments on the house which have left you embarrassed or stressed), an act that is close to adultery, or negative behaviour (this could include behaviour that your husband or wife cannot help due to a mental or physical illness.)
- That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.
This means that you must not have lived with your husband or wife for 2 years. You must also be able to satisfy that there is no good cause for the living apart (eg it excludes working away) and that you had the intention to live apart.
- That the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to a decree being granted.
This means that both you and your spouse want a divorce but you do not fit into one of the points above. You must then live apart for 2 years in order to get a divorce. You both must consent to getting the divorce.
- That the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
This is the last ground for being able to get a divorce and is very much like the previous ground. However the difference is that if your husband or wife does not agree to getting a divorce then you must live apart for a period of 5 years.
Starting the divorce proceedings
The first step to take when wanting a divorce is to file a divorce petition. This is a form you can get online that needs to be filled out which includes your full name and address, your husband or wife’s full name and address and the marriage certificate, either the original or a copy from a registery office. The form must also include dates of births and names of any children, no matter how old they are.
Once you have completed the form, two copies of it must be sent to your nearest divorce court, or three copies must be sent if you have named someone your husband/wife has committed adultery with. You must keep your own copy. In order to find your nearest divorce court go to courttribunalfinder.service.gov.uk and enter your postcode.
There is a fee of £410 which needs to be paid to the court in order to start a divorce. Help is offered with paying the fee if you are on benefits or a low income.
Responding to a divorce
If your husband/wife has started a divorce petition against you, the court will send you a copy of it along with a notice of when the proceedings will begin and an acknowledgement of service form.
The notice of proceedings form will tell you what you need to do next.
You need to fill in the acknowledgment of service form and send it back. If you do not respond within 21 days, your husband or wife can continue with the divorce as if you have agreed.
You can use the acknowledgement of service form to either agree with the divorce or disagree with it, but either way it must be sent back within eight days. If you agree with the divorce the divorce will go ahead.
If you disagree with the divorce you must fill in a particular part of the acknowledgement of service form that says you are defending the divorce and the court will then send copies of this to your husband/wife. Once you have stated that you are defending the divorce, it is advised that you seek legal advice to assist you.
After stating that you are disagreeing with the divorce you have 21 days to download the answer to divorce petition from the government website and fill it in stating why you are defending the divorce, This in law is called “giving an answer”. At this stage you may have to pay £245 court fee. When a divorce is defended or you and your husband/wife have both filed petitions, the court will have a hearing where yourself, your husband/wife will all discuss the divorce and try to come to an agreement.
If your husband or wife doesn't defend the divorce petition then you will be sent a "decree nisi". This is because the court cannot see a reason as to why you can't get divorced.
If there isn't agreement by the other party then a decree nisi is still possible but will involve a court hearing so the judge can decide whether or not to grant this.
An application for a decree nisi must be carried out in order to get one. If your husband or wife are defending the case then you will need to fill out section B saying you want a 'case management hearing'. You must also make a statement confirming what you said in your divorce petition is true. The statement form which covers the grounds you've given for your divorce should be used. Attach a copy of your partner's response.
If the court agrees, you will both be sent a certificate of entitlement to a decree and a decree nisi. Six weeks after this you can apply for the next step which is the decree absolute.
If you are sent a 'notice of refusal of judge's certificate' then your application has been refused. This will tell you why you can't divorce and what to do next. You may be required to provide more information or go to court.
This is the legal document that ends your marriage. The six week gap before you apply is there to give you time to discuss finances and any other issues with your partner.
When looking at finances you may agree with your husband or wife on what each of you will get. This is known as a consent order. The court will then approve it but you will need a solicitor to draw up the arrangements of this order plus you will have an extra court fee of £50. You must apply within 12 months of getting the decree nisi otherwise you will have to explain the delay to the court.
To apply for a decree absolute, you must fill in the form that makes the decree nisi into a decree absolute. If your husband or wife started the divorce, but they haven’t applied for a decree absolute, you can apply. You’ll have to wait an extra three months, on top of the standard six week delay before you can do this.
You’ll have to pay a £155 fee and go to a court hearing with your husband or wife. If the court finds that the time limits have been met and there are no other reasons not to grant the divorce then they will send you both a decree absolute.
Once you get the decree absolute, you are divorced. Keep the decree absolute safe - you will need to show it if you remarry or to prove your marital status.