There is much confusing speculation put out on the internet and elsewhere about how to get a divorce in the UK. There are many confusing pieces of information which simply do not reflect what actually happens in the process that can cause much stress to couples going through the divorce process. By this article, I hope to dispel the myths and help those who are either about the embark on divorce or going through the same to really understand the process and the dos and don’ts connected with this.
In the United Kingdom, in order to proceed to file divorce papers and undertake the divorce process, there must be jurisdiction in the UK to do so. Again, there is much confusion about what allows someone to have the right to petition in the UK. Simply relocating in this country for two or three weeks will not give you the right to issue divorce proceedings in the UK. The Court will have the legal power to deal with your divorce because either you are an opposite sex couple under the definition of Article 3(1) of the Counsel Regulation EC No 2201/2003 of the 27th November 2003 or are a same sex couple under the Same Sex Couple Marriage Restriction and Recognition of Judgements Regulations 2014 for matrimonial proceedings involving same sex couples.
The reasons for jurisdiction are:
- The Petitioner and Respondent ie the couple are habitually resident in England and Wales; or
- The Petitioner and Respondent were last habitually resident in England and Wales and the Petitioner or the Respondent still resides there (which must be specified); or
- The Respondent is habitually resident in England and Wales; or
- The Petitioner is habitually resident in England and Wales and has resided there for at least a year immediately prior to the presentation of the Petition; or
- The Petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the Petition; or
- The Petitioner and Respondent are both domiciled in England and Wales; or
If the options above do not apply then you must consider whether any of the others are applicable, namely :-
- That the Court has jurisdiction other than under the Council regulation on the basis that no Court of a EU member state has jurisdiction under the Council regulation and the Petitioner or the Respondent is domiciled in England and Wales on the date when this application is issued; or
- The Court has jurisdiction other than under the Marriage Same Sex Couples Jurisdiction and Recognition of Judgements Regulations 2014 or under Civil Partnership Jurisdiction or Recognition of Judgements Regulation 2005 on the basis that no Court has or is recognised as having jurisdiction as set out in these regulations and either the Petitioner or the Respondent is domiciled in England and Wales or the Petitioner and Respondent registered as civil partners of each other in England and Wales or in the case of a same sex couple married to each other under the law of England and Wales and it will be in the interests of justice for the Court to assume jurisdiction in this case.
Habitual residence is the place in which your life is mainly based. You must be settled there and intend to stay settled there. Also, some of the following could apply;
That you work there, own property, have your children based in schools there and your main family life takes place there.
You are not habitually resident if you simply have a holiday home in the UK and rarely spend time here. To learn more about who get to stay in the house during a divorce, click here.
Domicile is the main permanent home in which you live or to which you intend to return. When you are born you acquire your client’s domicile, either your father’s if they were married or your mother’s if they were not married or if your father died before you were born. If you have since moved to another country and made that your permanent home then your domicile may have moved there. It is important to know that your permanent domicile may affect your tax position.
If you were born in England and Wales and have lived your entire life here and intend to stay here, then it is very likely that you will be both habitually resident and domiciled here. If you have any doubt, or if you have been moving around various jurisdictions, you should obtain legal advice to ensure that you have the relevant jurisdiction to petition.
In the divorce, you will need to have ready for filing with the Court, your marriage certificate – whether opposite sex couples or same sex couples. You may also need a translation if you have been married out of the jurisdiction and the marriage certificate is in a different language. This will have to be certified by a Notary Public or authenticated by a Statement of Truth by the person who did the translation. You should also be aware that if you entered into a religious marriage as well as a civil marriage, that civil divorce proceedings in the UK will not dissolve the religious part of the marriage. It is important that you contact your relevant religious authority to seek guidance from them or from your lawyer if you are unsure.
The Divorce Petition itself will require you to give your names and confirm whether the name you are giving is the same as that on the marriage certificate. You will have to provide details of your home address, phone number and email and whether you have a solicitor acting for you and whether you want the court papers sent to your home address or issued to somewhere else.
Your partner’s details, address etc will also have to be provided. If you do not have your spouse’s address, this could lead you into difficulties since they must be served with the issued Court documentation.
If you cannot find your marriage certificate, you can either apply for a duplicate and order a copy of the certificate at www.gro.gov.uk/gro/content/certificates, for which a fee is payable. If you simply cannot locate your marriage certificate or a copy if you were married out of the jurisdiction you will need to make a separate application to the Court on what is known on a Form D11 and pay a further court fee. If you are uncertain you must seek advice about this.
If your spouse lives outside of the UK, you may have to serve the Petition outside of the United Kingdom. In every case it is imperative that you can prove that the Petition has been served and received by your spouse. You should also be aware that you cannot apply for a divorce or dissolution unless you have been in the marriage for at least one year.
In order for you to understand how to get a divorce, you must understand the above criteria apply and the reason for the divorce or dissolution must be set out in your Petition formally in the current paragraph 6(1). These reasons support the fact that the marriage has broken down and cannot be saved. The reasons are:-
The Respondent has committed adultery and the Petitioner finds it intolerant to live with the Respondent.
The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of this Petition.
Separated for 2 years and consent
The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition and the Respondent consents to a decree/order being granted.
Separated for 5 years
The parties to the marriage/civil partnership have lived apart for a continuous period of at least five years immediately preceding the presentation of the Petition.
Please note Adultery only available if the adultery was between your spouse and a member of the opposite sex. You cannot rely on Adultery as a ground if you have lived together for a period or a combination of periods exceeding six months.
The same applies to Behaviour – If you have lived together for more than six months after the last incident.
If you wish to rely on two or five years separation you must ensure that you have been separated for the entire time in order to qualify for this ground.
Please note, you can still live in the same home while separated as long as long as you do not share food together, cook together or sleep together.
If you wish to use either two years separation or five years separation you must confirm the date on which you reach the conclusion that the marriage was at an end and stopped living as a couple. If you are relying on either Adultery, Behaviour or Desertion details have to be given or a Statement of Case to support your application.
When dealing with Adultery, the Co-Respondent is not normally named these days because otherwise you will have to serve a copy of the Petition on them and this could cause delays.
You will have to indicate whether there has been any other previous proceedings and whether you wish, in your Petition, to apply for financial orders which include:
- Maintenance pending suit
- Periodical payments
- Secured provision
- Lump sum orders
- Property adjustment orders
- Pension sharing/compensation sharing attachment orders
You should also indicate whether you wish to seek the costs of the Petition from the other side.
In the case of adultery or unreasonable behaviour, you would normally serve a draft of your Petition on the other side under what is known as the Law Society Protocol to avoid there being a defended Petition. You can file your Divorce Petition online, which can sometimes give you a quick divorce.
The cost of a Petition is £550.00 which also covers the cost of the Decree Absolute. This simply deals with the dissolution of the marriage itself but will not deal with the full cost of the divorce process. Costs of a divorce are those of your lawyer and any other third parties that have been utilised to deal with the process.
How long a divorce takes can vary on the circumstances of your matter. If a draft is quickly served and accepted, the original can then be filed at the Court, officially served and application made for Decree Nisi as the soonest possible time. This is achieved by filing a statement in support of your divorce or dissolution and simply states that you have read the Petition, that you do not wish to alter anything and everything in your Petition is true, whether it has affected your health and whether the adultery or behaviour is continuing. You are also asked whether you have lived at the same address for more than six months and asks you to identify the signature of the document that your spouse would have filed with the Court to confirm that they have no objection to the divorce.
This is known as an Acknowledgement of Service and is normally filed back with you or the Court within eight days of receipt of the Petition. Sometimes, your spouse will decide that they want to oppose the divorce in which case a contested divorce can take a year or more, since there would have to be contested court proceedings in which evidence would be given to see whether you can be granted your divorce.
If you and your spouse do not wish to rely on either adultery or behaviour, a very simple way forward if you have been separated, even in the same household, for more than two years, is to petition on the grounds of two years separation with consent. Please note that if consent is withheld from your spouse, you have no Petition and will have to begin on another ground. In each case you must understand that you cannot proceed for a divorce the UK unless you have been married for a period of one year from the date of your marriage.
If you have been married for less than one year and wish to formalise some kind of arrangement, then it is open to you to apply for what is known as a Judicial Separation. These contain the same ground as those for divorce but the only difference is that the marriage would not have irretrievably broken down and you will not be entitled to the same kind of financial claims as if there were a divorce. Some people, for religious reasons who cannot get divorced, will apply for a Judicial Separation.
The longer a divorce process continues, the more costly it will be and the process by which the finances are dealt with can also determine the cost. If the parties enter into mediation, the cost of mediation is far lower than the average divorce lawyer’s costs. Some mediators charge between £110 – £150 plus VAT per hour. If the divorce process and finances can be dealt with in say ten sessions, this will of course put a cap on the amount of the divorce costs.
Sometimes parties choose to proceed on a voluntary basis whereby the financial forms, known as a Form E, are exchanged between solicitors within a set period of time and negotiations can begin. This may give a quick divorce and financial settlement in some cases, particularly if the parties’ finances are known to both parties. If the parties choose to go the collaborative law route, ie that both solicitors and parties sign up that they will not to Court but will have as many sessions as is necessary to work out a financial settlement, and again costs can be reduced. However, the collaborative process if it cannot be successful, both sides’ solicitors have to withdraw from the case if the matter then proceeds to Court.
Arbitration is a new process in Divorce cases but the decision of the arbitrator is trial and cannot be appealed.
The Court process itself has a set amount of time to undertake. On the issue of the Form A, Financial Notice, there is approximately six to twelve weeks delay until what is known as the First Appointment. From the First Appointment there can be a twelve weeks delay until the Financial Dispute Resolution hearing which is the further “without prejudice” hearing that takes place. If an agreement can be reached at that hearing, then again the costs will be limited. If it cannot, then the matter will proceed to a Final Hearing. If matters do proceed to a Final Hearing, the costs can double between the Financial Dispute Resolution hearing and the Final Hearing.
The average cost of a Divorce Petition is £550.00 for Court fees, and £1,000 plus VAT solicitors’ costs (plus the Court fees). Sometimes this will be more if there has been an attempt at defending in between.
The financial side of matters can vary between £5,000 plus VAT to £150,000 plus VAT depending on the process and the parties’ approach to this. Costs can mount up inexorably if one party refuses to believe the assets of the other and continues to raise Questionnaire after Questionnaire about those assets or invoke the services of Forensic Accountants to no avail, or if one of the parties refuses to give proper disclosure and frustrates the process. It should be noted that costs cannot be awarded from the other side if there is a starting point of “No Order for Costs”. If, however, one of the parties is intractable about giving disclosure or frustrates the entire financial process, then they may find themselves having to pay the costs of the other party as a consequence. This will also apply if they have been found to be lying.
So in conclusion to quicken up your divorce process be prepared to compromise, supply all the financial information readily and on time and do not hold on to unrealistic expectations for a settlement or to do with child care as you will suffer the financial impact for you and the family.