Divorce, in England and Wales, follows a structured legal process under the Divorce, Dissolution and Separation Act 2020 (the “Act”).
Starting Divorce Proceedings
A couple must have been married for at least one year before divorce proceedings can be started. An application can be made by one spouse (i.e. a sole application) or by the couple together (i.e. a joint application).
If the application is:
- A sole application, the person who starts the divorce proceedings is known as the applicant and the other spouse is known as the respondent.
- A joint application, the spouses together are the applicants and there is no respondent.
An application that begins as a joint application can be changed to a sole application if one of the spouses decides they no longer wish to pursue divorce proceedings or refuses to progress the proceedings. However, an application that begins as a sole application cannot be changed to a joint application. To be eligible to start divorce proceedings, the applicant(s) must meet at least one of the jurisdictional criteria, which are based on the habitual residence or domicile of one or both parties to the marriage. Habitual residence is difficult to define but can be taken to mean where someone lives most of the time and where they have their centre of interests. Domicile is also difficult to define but, generally, a person is domiciled in a country if they consider their permanent home is there, even though they may live in another country.
There is only one ground for divorce, which is that the marriage has “irretrievably broken down”.
If you decide to proceed with a divorce, once you have prepared the draft application for divorce, it is sensible to send a copy to your spouse before sending the application to the court via an online portal. This will allow your spouse to consider the application and share any concerns they may have about the contents of the application. You can then decide if you want to change or amend the application before submitting it to the court. Before issuing proceedings, you and your spouse may wish to consider an agreement about who will pay the costs of the proceedings or how you will share the costs of the Divorce.
Once the sole application is finalised or agreed, it is sent to the court, together with an image of your marriage certificate and the relevant court fee. A statement of truth is included in the application, which confirms that the contents are true and that you understand you could be held in contempt of court if in fact something is not true. The court then issues the application which starts the divorce proceedings.
The issued application and court documents are then served on your spouse or their solicitors if they have been instructed by your spouse. Service means the documents are sent by a method permitted by court rules. The documents must be served within 28 days after the application is issued by the court.
Your spouse or their solicitors should then complete and submit to the court a document called the Acknowledgment of Service within 14 days. They can do this online. In the Acknowledgment of Service, your spouse acknowledges receipt of the application.
It is possible for a respondent to dispute the divorce, but on very limited grounds, such as the validity of the marriage. If your spouse disputes the proceedings, there will be a court hearing to decide if the divorce proceedings can continue or whether they should be dismissed.
Applying For The First Stage Divorce Order
The procedure for applying for a divorce or dissolution is governed by Part 7 of the Family Procedure Rules (the “FPR”). The procedure for serving a divorce or dissolution application is governed by Part 6 of the FPR.
A divorce order is made in two stages. Provided your spouse does not dispute the proceedings, 20 weeks after the divorce application was issued, you can apply for the first stage of the divorce, called the Conditional Order. In the application for the Conditional Order, you must confirm that you wish to proceed with the divorce, and that everything in the divorce application remains unchanged or, if not, what has changed.
Applying For The Final Order Of Divorce
Once six weeks (and one day) have passed from the day the Conditional Order was made, you can apply for the Final Divorce Order. This brings your marriage to an end, and you are then formally divorced. However, you should not apply for the Final Divorce Order until any application for financial orders or arrangements for the children have been resolved or agreement has been reached and the agreement has been made into a court order.
If you do not apply for the Final Divorce Order, your spouse could apply, but only after three months from the first day you could have applied.
Divorce Procedure: Joint Application
Before issuing the joint application, the draft application is sent to your spouse or their solicitors to check over and add any details that are necessary. The application is then sent back to you to review. The draft application can go back and forth in this way before it is finally submitted to court to be issued.
When the joint application has been finalised, it is submitted to the court together with an image of your original marriage certificate and court fee. A statement of truth is included in the application for both you and your spouse.
What Happens Once The Joint Application Is Issued?
Applying For The First Stage Divorce Order
A divorce order is made in two stages. 20 weeks after the divorce application was issued, you and your spouse can apply for the first stage of the divorce order, called the Conditional Order. In the application for the Conditional Order, you must each confirm that you wish to proceed with the divorce, and that everything in the divorce application remains unchanged or, if not, what has changed.
If one of you no longer wishes to apply for divorce or simply refuses to progress the divorce proceedings, the other applicant can make the application for a Conditional Order on a sole basis. The application then becomes a sole application and that applicant can then make the application for a Final Divorce Order of divorce. The spouse who is no longer participating in the proceedings is called the respondent from this stage of the proceedings.
Applying For The Final Order Of Divorce
Once six weeks have passed from the day the Conditional Order was made, you and your spouse can apply for the Final Divorce Order. This brings your marriage to an end, and you are then formally divorced. However, it is usual to wait to apply for the Final Divorce Order until any application for financial orders has been resolved or agreement has been reached about financial matters, and this has been made into a court order.
If financial matters have been resolved, but one of you at this stage no longer wishes to apply for divorce or simply refuses to progress the divorce proceedings, the other applicant can apply for a Final Divorce Order. However, that applicant must first formally inform the other spouse of their intention to make the application. They can only apply for the Final Divorce Order 14 days after they have informed their spouse of their intention to apply. This is to allow the other spouse an opportunity to apply to court to prevent the Final Divorce Order being made until financial matters have been resolved.
Finances
When a divorce application has been filed at court, either party can apply for financial orders. The orders available in financial remedy proceedings include the following:
- Periodical payments (also known as maintenance).
- Lump sum orders.
- Property adjustment orders (altering the ownership of property, for example the family home).
- Pension sharing orders and pension attachment orders.
Applying For Costs
Generally, judges discourage costs applications unless a respondent has held up the divorce, for example, by evading the application being served on them. In a straightforward case, the guidance is for each party to pay their own costs. If there are circumstances that mean that it is appropriate to apply for a costs order that your spouse pays your costs relating to the divorce proceedings, in a straightforward case, the costs application must be made by the time of the application for a Conditional Order.