How do I apply for a divorce?
To apply for a divorce, you must have been married for at least a year. It doesn’t matter where in the world you were married, but you can only apply for a divorce in England and Wales if either you or your spouse meet certain residence conditions or are domiciled here. You should speak to your family lawyer about this if you are in any doubt.
The divorce process is generally administrative. This means that, usually, neither of you will need to see a judge to get a divorce as it is almost always agreed by a judge on the paperwork. Most divorces can be conducted entirely online, meaning that you can apply for a divorce in England and Wales from anywhere in the world without needing to travel back to the UK.
The process is simple as long as you and your spouse agree to the divorce. If one party does not agree to the divorce, and takes a legal step to halt the process, it is called a defended divorce. Defended divorces use a different process, thankfully they are rare.
If you and your spouse are not in agreement regarding arrangements for children and finances these will be dealt with separately from the divorce process (but at the same time).
Starting divorce proceedings
The document that starts the divorce is called the application (previously known as ‘the petition’). To file your application, you will need to provide a full colour scan of your original marriage certificate (or an official copy) showing all four corners of the document. If your marriage certificate is not in English, then a certified translation is required. When submitting the divorce application, there is a court fee of £593. This fee does not include the work of a solicitor. Your solicitor fees are agreed and charged separately.
As of 6 April 2022, neither spouse needs to blame the other for the breakdown of the marriage. This is called the ‘no fault divorce‘. You will no longer need to provide specific reasons for the divorce. You only need to tick a box stating that your marriage has irretrievably broken down and cannot be saved. As part of the new system, it is not possible for your spouse to try and argue that the marriage has not broken down.
Since the new rules that removed the ‘blame’ game, it is now possible for you and your spouse to apply for a divorce in a joint application. The practicalities of this arrangement would be that one spouse drafts the application (Applicant 1) and the other spouse (Applicant 2) would review a draft before it is submitted to the court. You can still apply as a sole application, when the applying spouse will be the Applicant and replying spouse will be the Respondent.
There is no legal benefit whether you are Applicant/Respondent or Applicant 1/Applicant 2, other than the drafting of the application. The application itself is factual and provides the parties’ details so whoever drafts it does not alter the overall process.
Children and finances
Additionally, for any financial or children arrangements that need to be made, it doesn’t matter in most cases who starts the divorce and why. Either spouse can ask the court to make orders about money and about children, if necessary, during (or after) the divorce. These legal processes are completely separate from the divorce itself. (This guide only deals with the divorce procedure; see our guides to arrangements for children and financial arrangements for more information on these areas.)
Procedure
Filing the divorce application
The application is filed at court with the court fee and a scan of your marriage certificate, as well as a certified English translation if required. Whilst the court may be subject to delays, we advise clients that the application is generally issued within 2 – 4 weeks.
Serving the divorce application
Serving the issued divorce application on your spouse is different depending on where your spouse is at the time of issue. If your spouse is living in England and Wales, the court will serve them in the first instance via email. If this is not possible, then the court will serve them at the address you have provided by first class post.
If your spouse is living overseas, they should be served in accordance with the local laws of that country. Where a divorce has been agreed between the parties, it may be possible to write to your spouse and ask that they confirm in writing that they agree to be served via email. For matters where your spouse should not be informed of the issued application until they have been formally served, we will be able to advise on the appropriate method of service, whether by courier, process server or otherwise. In some cases, it may even possible to apply to the court to be allowed to serve your spouse via social media including Facebook, LinkedIn, Instagram and WhatsApp.
As part of the new system, your spouse must be served within 28 days of the divorce application being issued.
Acknowledgment of Service
When your spouse is served with the issued divorce application, they will have at least 14 days to respond to it confirming receipt and whether they intend to let the divorce progress. If your spouse is overseas, they may be entitled to an additional 14 days (28 days in total) depending on their location.
Your spouse must return the Acknowledgement of Service form to the court within that timeframe. In a sole application, if your spouse agrees to the divorce, then no further action will be required from them. The rest of the divorce process will be managed by the Applicant and their solicitor. For a joint application, either Applicant 1 or Applicant 2 is entitled to apply for the next stage, known as the Conditional Divorce Order.
If your spouse intends to defend the divorce on the basis that you should divorce in another jurisdiction other than England and Wales, then they must formally inform the court within this time. If your spouse does not respond within the appropriate timeframe, you can make a further application to the court to progress the application. Both of these are non-standard parts of the divorce process and you are highly advised to speak to a family solicitor about these additional steps.
Applying for the Conditional Divorce Order
After the application is issued by the court, the parties must wait for a ‘cooling off’ period of 20 weeks before they can apply for the next steps. There are very limited exceptions when you may apply to the court to reduce this period and you should assume that you will have to wait the full 20 weeks before progressing.
After 20 weeks, either Applicant 1 or Applicant 2 in a joint divorce application, or the Applicant in a sole divorce application, can apply to the court for a Conditional Divorce Order. It should be noted that the court cannot consider an order in regards to finances until a Conditional Divorce Order has been granted. This was previously known as the ‘decree nisi’ stage.
Finalising the divorce
After the Conditional Divorce Order has been granted, there is an additional waiting period of at least 6 weeks and 1 day before the Final Divorce Order can be applied for. On receipt of the Final Divorce Order, this is when the marriage is considered legally ended. The Final Divorce Order replaces the marriage certificate and will need to be produced in the future should either party need to prove their marital status. The Final Divorce Order was previously known as the ‘decree absolute’.
Take note that not everyone should apply for the Final Divorce Order as soon as it is available and you should make sure you have discussed whether you should do so with a family lawyer. Certain financial rights (including the right to claim on a spouse’s pension) can be lost once the divorce is concluded. Make sure you seek early advice about your financial rights, so that potential claims are not lost.
How long will my divorce take?
When applying for a divorce, you should be prepared for a wait of at least 6 months from drafting the application until receipt of the Final Divorce Order. Should you wish to make any arrangements relying on your marriage having been legally ended, we suggest that clients allow for at least 8 months to complete the process. If children or financial orders need to be made, then the process is likely to be longer and can take more than 12 months.
What else should I be aware of?
You can only legally end your marriage once
A married couple can only be divorced once in one jurisdiction. If your marriage has been legally ended in another country, you will not need to, nor will you be able to, apply for a divorce in England. It may still be possible for you to make financial claims against your ex-spouse as well as orders in relation to children depending on your circumstances.
Implications in relation to your Will
Upon receipt of the Final Divorce Order, certain provisions in your Will do not work as you might have intended them to. You will need to make a new Will promptly to ensure your wishes are carried out in the event of your death.