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Divorce Procedure

An uncontested divorce usually takes about 6 months to finalise, provided that service doesn’t become a problem, and can usually be completed by way of a paper exercise that doesn’t require you to ever meet a judge. Please see below for information about each of the stages of the divorce procedure.

Key Points

  • There’s no such thing as a quickie divorce in the UK
  • Providing you’ve both finalised as much as possible beforehand and have no complex matters to resolve, the process from filing the petition to the granting of the decree absolute takes about 6 months
  • You don’t need to go to court to get a divorce – only if your spouse defends the divorce
  • You could also get an annulment or judicial separation instead of a divorce
  • Financial settlements and child arrangements are separate to the divorce process, they can be decided before, during or after

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Process FAQs

Stage 1: File the petition

The divorce petition will be prepared by us on your instruction then lodged at our nearest divorce centre in Doncaster together with payment of the filing fee of £550. The papers will be issued by the court then posted directly to your spouse at the address for service provided. It then takes the court about 2 – 3 weeks to issue and serve the petition on your spouse.

Stage 2: Acknowledging service

Your spouse has 7 days from service to complete an acknowledgement of service form in reply to your petition, indicating whether or not he/she intends to defend the divorce and to admit any adultery if alleged. It often takes a little longer to deal with the acknowledgement than the rules provide for (to allow your spouse time to consult with a solicitor for advice on the papers) and therefore the time limit isn’t strictly enforced.

Acknowledgements are, however, usually received into court within 3 weeks of your spouse receiving the petition and Doncaster Court then processes a sealed copy of the form to us. We are then ready to progress to stage three.

Defended divorces are very rare as they are discouraged by solicitors for not achieving any positive result. They simply increase the time, acrimony and cost of the case. Nearly all petitions, therefore, proceed undefended. Even when your spouse doesn’t agree with all that you have said about his/her behaviour, specific wording can be used on the acknowledgement to protect his/her position which still enables the divorce to proceed undefended.

If your spouse fails to file his/her acknowledgement in court, we must then arrange for a duplicate set of the divorce papers to be personally served upon him/her. This is because we must satisfy the court that your spouse is aware of the proceedings before the divorce can continue. In rare circumstances, service can be ‘deemed’ or ‘dispensed with’. We can advise you about these matters if service becomes a problem in your case.

Stage 3: Decree nisi application

This stage involves completion of an application form with a supporting statement, usually exhibiting a copy of your spouse’s acknowledgement. We will prepare the papers for you and submit them to court on your behalf after you have checked and signed them. A judge will then consider the papers in our absence and raise questions if he has any, but usually the judge will simply certify that you are entitled to a decree nisi and notify us of the date when this will be pronounced (approximately 8 weeks later).

Stage 4: Decree nisi pronouncement

This is the penultimate stage of your divorce and the process from issuing the petition (stage 1) up to now will most likely have taken around 4 – 5 months, depending on how quickly the acknowledgement was filed. You don’t need to attend at court for the decree nisi pronouncement unless there is a disputed claim for costs against your spouse within your petition (we will advise you about your options for claiming costs when taking your instructions to prepare the petition).

If there are unresolved financial and property matters in your divorce, especially involving pensions, then it is often advisable to halt at the decree nisi stage until such time as these matters have been fully addressed. This is because the grant of a decree absolute may adversely affect your position, for example, causing you to lose the right of significant pension benefits and inheritance from your spouse; also losing your right to occupy the family home if it is owned in your spouse’s sole name.

Stage 5: Decree absolute

The earliest date when a petitioner can apply for decree absolute is 6 weeks and 1 day after the decree nisi (a respondent has to wait a further 3 month period before applying if the petitioner fails to do so and this involves a hearing and payment of a fee). The petitioner’s application is usually processed immediately without a hearing or fee, although it can take the court up to 2 weeks to issue the certificate. It is this second and final decree which brings your marriage to an end and leaves you free to remarry. You should note that if you are the respondent in the divorce, you would be prevented on remarriage from bringing any financial claims against your former spouse, so it is essential that you seek legal advice before remarriage if the finances haven’t yet been fully dealt with. This is to avoid what is commonly called ‘the remarriage trap’. As a petitioner’s claims are set out in the prayer of the petition as standard practice, the same trap does not extend to them, except that spousal maintenance cannot be claimed from their former spouse if they do remarry.

Many people don’t realise that there is no time limit on bringing financial claims and wrongly assume that once the decree absolute has been granted, this brings financial claims to an end. It doesn’t. This is why it’s important to secure a clean break order within your divorce, which dismisses all future potential claims you have against each other where appropriate.

You would also need to update your will after the divorce as the pronouncement of decree absolute would invalidate any gift to your former spouse and could result in partial or full intestacy.

Divorce processes: FAQs

What is an uncontested/undefended/no fault divorce?

An undefended or uncontested divorce is when the respondent does not actively oppose or challenge the petition by filing an answer or defence. It refers simply to the main suit and doesn’t extend to children or financial issues.

A no fault divorce refers to petitions filed on a 2 or 5 year separation. When you rely on the facts of adultery, unreasonable behaviour or desertion, you will usually need to prove that these behaviours are the fault of your spouse. However, you can use the fact of unreasonable behaviour to both agree some mild content about their behaviour, effectively making it a ‘no fault’ divorce.

No fault divorce

There is no such thing as a ‘no fault divorce’ at present in England and Wales. The closest thing to a no fault divorce in these countries is a petition filed on a 2 or 5 year separation. The ‘2 year separation’ petition requires the couple to prove that they have been separated for 2 years, with both parties in agreement. The 5 year petition requires one party to prove that there has been no cohabitation for 5 years. Consent is not necessary from the other party.

The idea of a ‘no fault divorce’ — as it exists in other countries around the world — sees couples formally end their marriage quickly without fault assigned to either person, or the need to prove the couple have been separated for a length of time.

In this country, when you rely on the facts of adultery, unreasonable behaviour or desertion, you will usually need to prove that these behaviours are the fault of your spouse.

However, following the recent case of Owens v Owens, the government published a consultation paper saying it aimed to to remove both the ability to allege fault and the ability to contest (defend) a divorce as soon as possible. Find out more here.

Contested divorce

The term ‘contested divorce’ often refers to two situations:

  • The respondent does not want to divorce and does not agree that the divorce is necessary.
  • The respondent objects to reasons cited for the breakdown of the marriage.

The first situation — in which the divorce itself is contested — is quite rare. The respondent may believe that:

  • the marriage has not irretrievably broken down
  • both parties need a ‘cooling off’ period before undertaking something so final
  • none of the reasons for the divorce are applicable

However, when a relationship has reached the stage when one of the parties is filing for divorce, it is usually the case that both parties are in agreement.

The more common scenario is that both parties are ready to separate but the respondent disagrees with the reasons that the petitioner has cited for the relationship irretrievably breaking down.

To start divorce proceedings, the petitioner must prove that one of the following has occurred:

  • adultery
  • unreasonable behaviour
  • desertion
  • 2 years separation with consent
  • 5 years separation (no consent required)

In some cases, a respondent may even contest the reasons cited and cross-petition. This sees the respondent petition the court to grant them the divorce instead; at which point, the new petitioner would be able to claim that the marriage had broken down due to the actions of the other party.

Contested divorces are complex, time consuming and expensive. In some instances, the case could go to court, where a judge will weigh up the details of the case before deciding whether a decree should be granted.

If a divorce is contested, it is vital that both parties arrange professional legal representation or risk future difficulties in relation to children and finances.

Does it matter to the court whose fault it is? How does it affect the financial arrangements or child arrangements?

It doesn’t usually matter if you are the petitioner or the respondent: neither is looked on more favourably than the other in awarding settlements or in deciding child arrangements. Usually admitting to adultery or unreasonable behaviour doesn’t disadvantage someone in the eyes of a judge (except possibly relating to a main suit costs order).

However, there is relevant conduct that could affect court orders, but it must be ‘obvious and gross’ for a judge to take it into account. This can include:

  • Domestic violence or sexual abuse – this could affect child arrangements or financial settlements to a spouse who may have been permanently injured as a result of violence.
  • Substance abuse – anything that affects the welfare of your child could subsequently be taken into account when deciding child arrangements.
  • Criminal activity – this can range from abducting children to drug dealing, which may affect orders on child arrangements.
  • Financial misconduct – gambling or reckless expenditure can result in a financial penalty.

How long does it take to get a divorce? Can you get a ‘quickie’ divorce?

On average it takes 6 months to be granted a divorce, providing you have agreed as much detail as you can in advance and there are few complex matters still to be disputed and resolved.

There isn’t really such a thing as a quickie divorce in the UK. The courts have a timeframe which often cannot be deviated from, since there is a compulsory six-week and one day gap between the decree nisi being pronounced and the petitioner applying for a decree absolute. There is also usually a period of 8 weeks between the judge receiving the application for the decree nisi and the date for the pronouncement.

The time it takes to get a divorce can also vary depending on the efficiency and speed of the local divorce centre which handles the paperwork.

We often hear in the press about celebrities getting a ‘quickie divorce’ – taking less than 5 minutes. This is not factually accurate as everyone goes through the same divorce process – celebrity or not! (There are, however, exceptional circumstances which could speed up a divorce, such as a spouse being terminally ill.) The ‘5 minute divorce’ announced by the media usually refers to the decree nisi pronouncement hearing in court, which is very quick.

Do you need to go to court to get a divorce?

You won’t usually have to go to court to be granted a divorce, as the process is now mainly paper-based. You would only need to go to court if your spouse is defending the divorce, which is a rare occurrence, or to argue about who should pay the petitioner’s costs if they are seeking costs from the respondent and if this is not agreed. However, you may need to go to court for other matters if you can’t agree – these include to rectify your financial affairs and to decide on any child arrangements. These are separate from the divorce process though.

Are there any alternatives to divorce for ending a marriage?

Annulment

It is possible to end your marriage (or dissolve your civil partnership) by getting an annulment.

You can get an annulment at any point after your marriage – whereas you can get divorced only if you’ve been married for a year. If you’re going to apply for annulment, it’s best done within three years of the date of marriage. There are two situations in which your marriage could be annulled: the first is that your marriage wasn’t legally valid (void); and the second is that your marriage is defective (voidable).

Void or legally invalid marriages are those where:

  • One of you was under 16
  • You are closely related (even if you weren’t aware of this)
  • One of you was already married or in a civil partnership

Void or legally invalid marriages are then treated as if they have never existed, i.e. – that you’ve never been married.

Voidable or defective marriages are those where:

  • The marriage hasn’t been consummated by normal sexual intercourse, by refusal or inability by either spouse
  • One or both of you didn’t consent to the marriage, for example you were forced, under the influence of alcohol or drugs, or mentally ill
  • Your spouse was aware that they had a sexually transmitted disease which could be passed to you, and they didn’t tell you
  • Your spouse was aware that they were pregnant with someone else’s child at the time of your marriage, and they didn’t tell you

Voidable or defective marriages will be treated by the law as having been valid until the point they were annulled.

You’ll usually have to go to court to get an annulment, even if you both agree to the annulment. The annulment process starts with one of you filling out a nullity petition. You’ll send two copies of this to the family courts and keep one for yourself. Your spouse then has 8 days to respond to this petition, agreeing to the annulment. If they agree, you can then apply for a conditional order, or decree nisi. You’ll also need to submit a statement supporting the truth of what you claimed in your nullity petition. Once your decree nisi is granted, you can then apply to have it made absolute – this is your decree of nullity. If the courts are happy that you satisfy the reasons for annulment, they’ll send you the decree. Now you’re no longer married!

Judicial separation

You can be granted a judicial separation if you have religious or moral reasons for not divorcing. These days, however, judicial separation petitions are very rare and when they are used, often convert to a divorce mid – process.

When are arrangements agreed for the finances, house and children?

The divorce procedure is separate from the arrangements you make for your children, and for your assets such as finances and property. You can agree any of these arrangements before, during or after your divorce.

It’s important to note that, in England and Wales, there are no time limits for making a financial claim against your former spouse. This means that you and your spouse can continue to make financial claims (and counter-claims) on each other even after your decree absolute has been granted and you are fully divorced. However, if the respondent remarries, he/she cannot make a further claim.

The 2015 case of Wyatt & Vince reminds us why it is so important to get a ‘clean break order’ that prevents any future financial claims against each other.

What if we can’t agree during our divorce proceedings?

This depends on what aspects of your divorce you can’t agree on. If you can’t both agree that you are going to get divorced – that is, that one of you defends the divorce and doesn’t consent to it, then this requires significant legal advice. It will be a lengthy and costly process. However, it is very rare that a divorce is defended or contested in this way, as most people don’t have the money, time or energy for it!

We encourage all divorcing and separating couples to consider different dispute resolution options when they can’t agree.

If you’ve exhausted these resolution options, it’s likely that you will need to go to court, where a judge can impose court orders to settle things, whether they are financial remedies or child arrangements.

Are divorce settlements taxable?

Yes, aspects of a divorce settlement are taxable. You will not be subject to any immediate income tax charges resulting from the transfer of assets as part of a divorce settlement; however, there may be capital gains tax implications if it is over the annual exemption amount.

This can be a complex issue; it is recommended that you get independent financial advice if you have any queries relating to tax and divorce.

Does divorce invalidate a will?

Once you divorce, the law will treat the situation as if your former partner had died. This means that any property/interest in property or gifts bequeathed to your former partner will fall back into residue, i.e. – what is left from an estate following the payment of debts, executor’s fees, funeral and legal expenses, and after any specific gifts or sums of cash have been accounted for.

It is recommended that you make a new will as soon as you have decided to separate. This way, any decisions related to the provision of your children can be made immediately clear; as divorce does not invalidate your will, you can make a new one before the decree absolute, safe in the knowledge that it will remain valid after your divorce is final.

What do divorce papers look like?

This depends whether you are the petitioner or the respondent. If you are the petitioner you will have a divorce petition to complete, an application for decree nisi and application for decree absolute. If you are respondent, you generally only have to complete an acknowledgment of service.  All applications are on A4 paper. The divorce petition and application for decree nisi are the longest and come in a booklet format with various questions to answer.

Are divorce proceedings public record?

Divorce records in the UK are public record; however, they are not available online.

The location of these records will depend on:

  • the country of the UK in which the divorce was filed
  • the year in which it was filed

England and Wales

1858–1937: National Archives of England

After 1937: General Register Office of England and/or National Archives

What divorce papers do I need to remarry?

You will need to produce your decree absolute if you intend to remarry. This can be obtained from the court that initially issued it. If you don’t know the court, you can ask the Central Family Court. Charges will be administered both for a copy of the document and the court’s time in searching for the document.

However, before remarriage please make sure you have sought advice as to how your financial claims from your previous marriage may be affected. You may forfeit your claims against your former spouse upon remarriage.

Does divorce sever a joint tenancy?

If you are joint tenants who have divorced, the rules of joint tenancy continue to apply; namely, that you are prohibited from selling or remortgaging the property without the other’s consent, and that the property will automatically pass to the other person in the event of one of you dying.

However, at any point in a joint tenancy, one party can choose to ‘severe the joint tenancy’. Once this occurs, both parties become ‘tenants in common’, at which point different rules apply.

Being divorced does not automatically sever the joint tenancy.

Can divorce papers be served at work?

If you have already issued divorce papers but your spouse is not co-operating, you can arrange to have your spouse personally served by either a process server or court bailiff. Personal service can take place at work, if needed.

If you cannot locate your spouse but have made all reasonable attempts to locate them, you may apply to the courts for either substituted service, for example sending the papers to their work, or you may apply to the court to dispense with service (to allow your divorce to proceed without serving the other party or obtaining their co-operation). Specific applications are needed and the ‘fact’ that you have relied upon within the divorce papers may also affect how you proceed. You should seek advice.

When divorced, what is your title?

Whether divorced or not, you are legally able to change your name and title by deed poll at any time. Most women who divorce will either keep their former husband’s surname or revert to their maiden name. If you wish to revert to your maiden name, you will need to do so by change of name deed or deed poll as it is not automatic. If you change your name before decree absolute, you must make sure the court has a copy of your change of name document as your decree absolute must match your current name.

When changing your name by deed poll you can change your surname, forenames and title; therefore, a divorced woman can call herself Mrs, Miss or Ms according to her preference.

What divorce papers do I need?

You will deal with several documents over the course the divorce proceedings. They are as follows:

  • D8 divorce petition — This is the main divorce document. It is used to begin divorce proceeding and first needs to be filed with the court.
  • Acknowledgement of service — Your spouse will be sent a copy of the D8 divorce petition that includes an ‘acknowledgement of service’ form. They will be required to complete the acknowledgement form before proceedings can continue.
  • Decree nisi — The next document you need to apply for is the decree nisi. This is the stage where a court will decide whether you are entitled to a divorce and whether your divorce can proceed.
  • Decree nisi pronounced — This certificate will contain information on when your decree nisi will be pronounced in court. It will be issued by the court prior to that date.
  • Decree absolute — You can apply for this final document no less than 6 weeks and 1 day after the decree nisi has been pronounced. The decree absolute is definitive proof that your marriage has ended.

What is a matrimonial order application?

This is the new name for the divorce petition – the document that starts the divorce process. However the term ‘divorce petition’ is still widely used and perhaps better known.

Who is the petitioner?

The petitioner is the spouse or civil partner who begins the divorce or dissolution of civil partnership procedure by filing the proceeding petition

Who is the respondent?

The respondent in divorce or dissolution proceedings is the spouse or civil partner who receives the petition; the one who is ‘being divorced’.

What is ‘service’?

Service is the word used for the process where legal papers are delivered to and received by the spouse to whom they’re addressed. Service can be effected by post or personally by hand using a process server. Sometimes a judge will deem service to be effective by posting documents through a particular letterbox. Occasionally a judge can order substituted service: e.g. via a relative, an advert in a newspaper or even in a Facebook posting. In exceptional circumstances, a judge has the power to dispense with service if satisfied that all reasonable efforts have been made to find and serve the respondent.

What is an ‘acknowledgement of service’?

This is the form that is sent out automatically to every respondent. It is sent with the divorce petition and a notice of the proceedings. The acknowledgement sets out several standard questions for the respondent to answer, including whether or not they intent to defend the divorce. The respondent (or sometimes their solicitor) must sign the acknowledgement and return it to court. This is supposed to happen within a week of receiving the divorce papers but, in practice, more time is usually given to allow sufficient time for the respondent to seek legal advice.

What is ‘address for service’?

This is the postal address of the respondent spouse, to which the divorce petition is delivered. It can be the home address, a c/o address or the respondent’s solicitor’s address (if they have a solicitor and have given instructions for their solicitor to receive the petition on their behalf).

What is a ‘prayer’ in divorce proceedings?

The prayer is a standard section of the divorce petition. Every prayer begins with the words “The petitioner therefore prays:” and then lists requests such as the marriage being dissolved and whether costs are being claimed from the respondent, and then goes on to list the possible financial remedy orders a court can make.

This list in the prayer can cause confusion and anxiety for a respondent spouse. Many respondents think that by acknowledging the divorce petition, they’re agreeing to pay all the possible financial orders set out in the prayer. This isn’t the case: it’s simply describing that, since nobody knows yet what the final financial details will be, these are the possible orders that could be made by the court, in the event it is asked to do so. To exclude these possible orders from the prayer may complicate processes later on. If and when a petitioner decides to pursue any of the financial orders, a separate application must be filed on ‘form A’.

What does ‘ancillary’ relief mean?

Ancillary relief is a legal term, derived from Latin, meaning financial claims ‘ancillary’ or ‘incidental’ to the divorce petition. It isn’t very layman friendly and, for these reasons has been replaced with more modern terminology known as ‘financial remedies’.

What is the main suit?

This refers to the paper exercise of dissolving the marriage or civil partnership. Lawyers usually regard this as the least contentious aspect of a divorce if the parties have children or financial issues to resolve. However, people can still get very upset when reading negative allegations about their behaviour or adultery, which is why Resolution is campaigning to introduce a new ‘no fault’ divorce law. We’ll keep you updated with any changes introduced.

What is a clean break order?

This is an order that can be made in divorce proceedings after decree nisi which effectively dismisses future financial remedy claims between divorcing spouses. It can be either a clean break on capital only, keeping maintenance claims alive, or it can be a total clean break between spouses in life and on death. The clean break order can be made by consent where parties agree or can be imposed by a judge at a final hearing.

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