Application for a Divorce
It is possible to get a divorce fairly simply and without huge cost if you can agree on the following four things:
- That your marriage or civil partnership is over.
- The (legal) reason that it’s over.
- How you will divide your property and possessions.
- If you have children, how you will both continue to look after them in the best possible way.
Unfortunately, many separating couples stumble over the division of assets or agreeing how both parents will continue to look after the children and this is what can cause complications and an escalation in costs.
If you are ready to apply for a divorce, you must firstly, have been married or in a civil partnership for more than a year and live in England or Wales. If you’ve been married or in a civil partnership for less than a year, you can still make arrangements in readiness but you will need to wait for when the year is up before you can make your application.
Grounds for Divorce
You will need to agree on why your marriage or civil partnership is over. In English law marriage fails because it has 'irretrievably broken down' due to one of five reasons, a civil partnership fails because it has 'irretrievably broken down' due to one of four. These are called 'grounds for divorce':
- Adultery. Your spouse had sex with someone else in the last six months and you can’t live with them any more. This ground is not available for a civil partnership.
- Unreasonable behaviour. Your spouse has behaved so badly towards you that you can’t live with them any more.
- Desertion. You have been deserted by your spouse for at least two years in the last two and a half
- years. (This is probably more difficult to prove than the others).
- Agreement after two years of separation. You have lived apart from each other for at least two years and you both agree to the divorce.
- Five years of separation. You have lived apart for at least five years. After five years you don’t need the consent of your spouse.
The ground of adultery can be used where your husband or wife has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse - not just a kiss or 'heavy petting'.
If you decide to file for divorce on grounds of adultery, you must do so within six months of discovering that your spouse cheated on you - although this time limit does not count if you have stopped living together. It is possible to cite the name of the third party but this course of action has few benefits and can merely complicate an already highly emotional stage of divorce.
You can only use the ground of adultery if you are the 'innocent' party (ie. your husband or wife slept with someone else - not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife can file for divorce.
There are essentially two distinct situations where the ground of unreasonable behaviour is given in a divorce petition: firstly where unreasonable behaviour has actually occurred - and secondly where none of the other grounds for divorce apply (eg where husband and wife have simply drifted apart and no longer wish to remain married).
Although unreasonable behaviour can constitute serious accusations including domestic violence or drunkenness, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behaviour, but some factual reason must be given and an incident of 'unreasonable behaviour' must have occurred less than six months prior to filing for divorce.
It should be noted that, if your husband or wife has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behaviour can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behaviour.
Living apart for more than 2 Years (with agreement)
If you and your spouse have lived apart for at least two years, and you both agree to get divorced, this ground can be used.
Living apart for more than 5 Years (without agreement)
If you have not been living with your husband or wife for at least five years, you can file for divorce on this ground, even if your spouse does not agree to divorce.
If your husband or wife left you, without your agreement or a good reason and with the intention of ending the relationship, it may be possible to use the ground of desertion when filing for divorce. They must have deserted you for over two years within the last two and a half years and you can have lived together for up to six months during this period. In practice, this is a rarely used ground.
Filing for a Divorce
The first proper step towards divorce is to complete a divorce or dissolution petition. The full names and addresses of both spouses must be stated in the form, along with the names and dates of birth of any children from the marriage (even if they are over 18). The grounds for divorce must also be given, as well as various other details. Two copies of the divorce petition form (three copies if you have named someone with whom your spouse had an affair) should be sent to your nearest family law court (you can find this on the HMCTS website) along with your marriage certificate (either the original or an official copy from a register office). You should also keep at least one copy for your own records. If you want to divorce your spouse, but do not know where they are, the court can end the marriage without sending them the divorce petition. The online divorce application service is being rolled out during 2018, making it possible to submit the documents via email.
Note that you will also have to pay a court fee (£550 since 21 March 2016) to begin divorce proceedings upon submitting a petition. You may be eligible for a reduction or exemption from court fees if your income falls below a certain threshold or you are on benefits.
It's a good idea to send a draft copy of this document to your spouse before you serve it on them. This could just help to diffuse any unpleasantness, you can agree between you what the Petition is going to say and it gives you a chance to see how cooperative your spouse is likely to be.
The court is then responsible for sending the divorce Petition and any other accompanying documents to your spouse. You need to give the court your spouse’s correct address. The court will send you a Notice of Issue of Petition to let you know that the Petition has been sent to your spouse. You will usually get this about a week after you give your Petition to the court. The court posts the Petition to your spouse using first-class post. You then just have to wait and see if your spouse responds.
Responding to a Divorce Petition
If your husband or wife has filed for divorce, you will receive the completed divorce petition form, along with a notice of proceedings form (which contains your case number and details of what you must do next) and an acknowledgement of service form. If you agree with the divorce petition, you should fill out the acknowledgement of service form and return this to the court within 8 days.
If you disagree with the divorce petition, you should still complete the acknowledgement of service form but ensure you fill in the part which states you are defending the divorce. Submitted copies of this form will later be sent to your spouse. You will have 21 days after submitting the acknowledgement of service form to explain why you are defending the divorce - known as ‘giving an answer’ - using the answer to a divorce petition form. You may have to pay an additional court fee (£245 at 29 April 2016) for giving an answer.
Additionally, you may decide to start your own divorce proceedings against your husband or wife by filing your own divorce petition.
Note that if you do not respond within 21 days of receiving a divorce petition, your spouse will be able to proceed with the divorce as if you have agreed.
If a divorce petition is defended, or both husband and wife issue divorce proceedings, the court will generally hold a hearing to discuss the case, which both parties will normally have to attend to reach an agreement. It is wise to take legal advice in the case of a court hearing.
If your Spouse Ignores the Divorce Petition
Your spouse has seven days from the day the Petition is received to return the Acknowledgment of Service form. This form allows your spouse to say that they’ve received the Petition and whether they wish to defend the divorce or not. If your spouse lives abroad, then they get more time to respond. If, after this time has passed, you still receive no response from them, then it could be because the Petition wasn't received for some reason, or that it's being ignored.
If the court wasn’t able to deliver the Petition, then they will let you know by sending you a Notice of Non-Service of Petition. The court will know that the Petition hasn't been delivered because the Post Office will return the Petition to the court. You then have to find your spouse’s correct address and let the court know so that it can try to deliver it again.
If it appears that the Petition was delivered but is being ignored, then you have to pick another method of service so that you can prove that the Petition has been received. You have four choices:
- Personal service;
- Deemed service;
- Application for service by an alternative method or at an alternative place; or
- Application to dispense with service.
It's possible to ask the court bailiff to serve the divorce paperwork for you. If he agrees then his costs are usually about £40. He won’t agree to serve the papers if you’ve got a lawyer acting for you. A Request for Service by the Court Bailiff (Form D89) is available from the court or www.justice.gov.uk/forms. You need to give the court a recent photo of your spouse and a description of them. If the service is successful, then the bailiff will file a Certificate of Service at court. If he can’t serve the papers, then he will file a Certificate of Non-Service. In this case you will have to choose another method of proving service.
If you can’t get the court bailiff to serve the paperwork for you, then you need to instruct a process server to do it. You can find them in the Yellow Pages or on the internet. The process server will need a new copy of the divorce Petition (sealed by the court), Notice of Proceedings (provided by the court) and a blank Acknowledgment of Service form (provided by the court). The process server will also need a recent photo and description of your spouse. If service is successful, then the process server will file a Certificate of Service confirming that personal service has taken place.
If your spouse has responded in some way, such as saying in an email, letter or post on Facebook that he’s received the Petition, then you can use this information to prove that he’s received the Petition. You can file it at court with an Application Notice (Form D11) and a court fee and ask the court for an order for deemed service.
Application for Service by an Alternative Method or at an Alternative Place
It may be that you think that there is more chance of your spouse receiving the Petition if it's served at another address (e.g. their parents’ house). You can apply for an order saying this using Application Form (Form D11). You have to file a court fee and the accompanying documents.
Application to Dispense with Service
You can use this method if all attempts at service have failed. This application can be made in Form D11. You will also need to complete a statement in Form D13B.
After receiving your spouse’s acknowledgement of service form, you can then apply for a Decree Nisi. This is essentially a document stating that the court does not see any reason why the divorce cannot proceed.
You can still apply for a Decree Nisi if your spouse defends the divorce, but you will need to complete section B of the form, requesting a ‘case management hearing’ before the judge. You will then have to attend this hearing to discuss your divorce, at which point the judge will decide whether or not to grant a Decree Nisi.
Once you have submitted the documentation, if the judge agrees that the divorce can go ahead, you will be sent a certificate of entitlement to a decree, along with the decree nisi itself. Otherwise, you will be sent a ‘notice of refusal of judge’s certificate’ form, stating why a divorce cannot go ahead along with the next steps.
Applying for Decree Absolute
6 weeks after receiving your decree nisi, you can apply for the decree absolute. This is the official legal document which ends your marriage.
The 6 week delay is designed to allow you and your spouse time to discuss arrangements regarding children and finances. Although you can extend this delay, this should be less than 12 months (otherwise you will need to explain the delay to the court). Because this alters your legal status towards one another, it is advisable to resolve financial matters prior to applying for a decree absolute.
After the court has received your application and checked that the time limits have been met and there are no reasons to prevent the divorce, it will send a decree absolute to both now former husband and wife.
Note that if your spouse filed for divorce but has not applied for a decree absolute, you can apply - but you have to wait for an extra 3 months (on top of the 6 weeks), pay a fee (£155 at 29 April 2016) and go to a court hearing with your spouse. Once you have applied for your decree absolute or final order, you will receive either a decree absolute and you will be divorced or a final order and your civil partnership has ended. You are legally married or still in a civil partnership until you receive the decree absolute or final order and must not marry or form another civil partnership again until after that time.