This is the first in a 4 part review of the divorce process entitled Petitioning for a Divorce.
- Part II: Acknowledgement of Service Form and Serving the Divorce Petition
- Part III: Obtaining the Decree Nisi of Divorce now called a ‘Conditional Order’
- Part IV: Obtaining the Decree Absolute of Divorce now called a ‘Final Order’
The first step in a divorce suit is the filing of the divorce petition. This can be by the Petitioner or done jointly by both parties. The Petitioner in a divorce can be either the husband or the wife. The divorce petition requires that the grounds for the divorce to also be stated in the petition.
There is now only 1 ground for divorce, being that the marriage has irretrievably broken down.
Overview
Who can divorce?
In order to obtain a Divorce in England or Wales, you and your spouse must:
- have been married for at least one year;
- and have ground for divorce.
- meet the residence rules; and
- have a marriage recognised as valid by UK law.
Petition For Divorce
Petitioning for divorce is the first step in the divorce process. A petition is effectively an application to the court asking that the court disolve the marriage. The spouse filing the petition is called the Petitioner and the other spouse, receiving the petition, is called the Respondent. Under the new rules both spouses can petition together. This reduces acrimony.
Issues that should be considered at this stage include:
1) Where to file the petition for divorce
There are certain residence requirements that you need to satisfy before filing a divorce petition in England and Wales. These are set out below. Generally the English courts have jurisdiction to grant a divorce where either spouse:
(a) is domiciled in England or Wales when the proceedings are begun, or
(b) is habitually resident in England or Wales
There are some other provisions too which we have not set out here, but they are particular to certain situations and if they apply to you then you should consider seeking professional advice before proceeding any further.
However; the majority of people contemplating a divorce will fall within one of the above categories.
Even if you are temporarily working abroad or perhaps assigned abroad in the armed forces or by your company, you will normally still qualify under the provisions listed above, as long as one of you meets these requirements.
The other spouse can be living elsewhere in the world. Domicile is a legally defined word and does not necessarily mean what it says in the dictionary.
However; most people who hold British nationality are automatically considered to be domiciled in England & Wales irrespective of where in the world they live. It is not easy to change your domicile simply by emigrating to another country.
Therefore the majority of British nationals will be considered to be domiciled in this jurisdiction.
Most divorces now start online.
If a divorce gets complicated it will then be transferred to your local county court.
2) What grounds to include in the divorce petition
There is only one ground for divorce in England & Wales. That is that the marriage has irretrievably broken down.
This no longer needs to be supported by one of five facts. The old rules needed the Petitioner to state one of the 5 facts:
Fact 1. Adultery
Adultery is voluntary sexual intercourse between a married person and someone of the opposite sex other than the spouse.
Fact 2. Unreasonable behaviour
Unreasonable behaviour comprises behaviour by the respondent which affects the petitioner in such a way that the petitioner cannot reasonably be expected to live with the respondent any longer.
Fact 3. Desertion
Fact 4. Two years separation and both parties consent to a divorce
This used to be called the ‘no fault‘ divorce option.
It doesn’t exist now
Fact 5. Five years separation
This fact applies after the parties to the marriage have been living separately for at least five years.
The Divorce Process
You will start by filing your petition online.
The process will take on average anywhere from six to eight months if there are no complications, delays or disputes.
Filing for divorce – To start divorce proceedings, a single or joint divorce application must be filed via the online divorce portal. In that application, you must include a ‘statement of irretrievable breakdown’ to confirm that the relationship has come to an end.
The process has been simplified and many people choose to do this themselves. However; where you have assets or children, it’s usually a good idea to get advice from a specialist divorce solicitor. This will save potential complications down the line.
Responding to a divorce application – If your spouse makes a sole application for divorce, you will be notified by the relevant court and must reply within 14 days with an ‘acknowledgement of service’ form. This is usually filed online, via the portal.
Conditional Order – The Conditional Order is a legal document issued by a court establishing that there is no barrier to your divorce.
After the divorce application has been issued, you have to wait a minimum 20-week cooling off period before you can apply for the Conditional Order. This has been introduced as part of the no-fault divorce laws and aims to give couples time to consider their decision and make any necessary arrangements. These may include financial arrangements or matters affecting children.
Final Order – Once a Conditional Order has been granted, you will then need to wait another 6 weeks, and you can then apply for a Final Order. Once a court issues you with a Final Order, your marriage is legally over.
Defending a divorce – Under the no-fault divorce laws, the option to contest/defend a divorce has been no longer exists. However; some divorces can be contested under the very limited circumstances. For instance, when marriage is not valid, or the English/Welsh courts have no jurisdiction. If this is a concern, you will certainly need assistance from a solicitor.
Frequently Asked Questions
What are the court fees for Petitioning for a Divorce?
At the time of writing this article the issue fee for a divorce petition is £593. However; The MoJ announced that these will rise by 10% from April 2024.
These fees regularly change and you should always check with the court to make sure of the exact current fee. If you are on a very low income, you may be able to apply to the court to waive the fees altogether.
Who should petition for the divorce?
Both party’s to the marriage can petition for a divorce. Although you need to have been married for at least one year before the petition is filed at court.
It does not impact the outcome of the proceedings who starts the divorce process. However; the petitioner has more control over the speed at which the divorce progresses and that can sometime be a material consideration.
What about the financial settlement after Divorce?
This is a separate procedure and will usually require the assistance of a solicitor.
The information set out here relates only to the divorce process and not the financial aspects of the divorce. Settling the financial aspects of a divorce can be amicable or in some circumstances can be a hotly disputed matter.
Either way, it needs to be done formally and legally through the courts. Any amicable arrangements between the parties without the involvement of the courts may well not be binding and can cause serious problems later.
You should consult an expert Family Law solicitor about these issues, even if you are planning on filing your own divorce petition.
What if the Respondent ignores the Petition?
Sadly this can sometimes happen. If it does then you will need to arrange for the petition to be served on the respondent in person by a process server.
This will incur an additional charge. The court must always be satisfied that the respondent has been served with the divorce petition. Failure to serve the respondent will cause delay in the divorce progressing and is a complication.
If complications like this arise you should seek professional assistance – we specialise in complex divorces and can advise you of your personal circumstances.
Can both parties to the marriage have the same solicitor acting for them in their divorce?
Yes. Under the new system both parties can petition together and can use the same solicitor too. However; they cannot both use the same solicitor if there are disputes as to finances or children.
Can I get my divorce speeded up?
Generally speaking, no! In almost all cases the formal steps must be followed and the courts will rarely allow these to be altered.
However; a good divorce solicitor can always help in making sure that the process is as smooth and fast as possible with minimal delay. If you need a swift divorce, contact us.
Can I withdraw my Divorce Petition?
A divorce petition can not be withdrawn once it is filed. If you decide not to continue with it, it will simply just stay on file.
I married abroad and I do not have my marriage certificate, the court will not accept my Petition without it?
This is a complication that will require the assistance of an expert divorce solicitor.
Should you have any queries about your own personal circumstances, contact us on 020 8401 7352.
The information provided in this article is general information only and it is not intended that you should rely on this information as advice relating to your specific circumstances.