Following years of campaigning there has been a major change in UK divorce laws, now known as the Divorce, Dissolution and Separation Act 2020. The welcomed change means if you wish to divorce from 6 April 2022 onward, the only basis to proceed is “no fault”. Whilst the Divorce Application, as it is now known, must confirm that the marriage has irretrievably broken down, there is no longer a requirement to state the reason for this.
Previously the law required married couples to state that their marriage has irretrievably broken down based on one of the following five facts:
- Two years desertion
- Two years separation with consent
- Five years separation
Similarly for civil partnerships establishing a ground for formally end the relationship no longer applies.
We understand that going through a divorce will be a stressful time, so we are here to make the process as easy as possible for you. Our expert divorce solicitors will guide you through each step of the process. Here we look at what the divorce process involves giving you a clear view of each of the stages:
So, what is the criteria for you to proceed? Firstly, you must establish that there is jurisdiction for you to proceed with your Divorce Application. These criteria are as follows:
- (a) i. both the parties are habitually resident in England and Wales;
- ii. the applicant is habitually resident in England and Wales and has lived there for a year prior to making an Application for divorce;
- iii. the respondent is habitually resident in England and Wales;
- iv. both parties are domiciled in England and Wales; or
- v. the applicant is domiciled and habitually resident in England and Wales and has lived there for at least six months prior to making an Application for divorce.
(b) Once you have established that you have jurisdiction to proceed in this country, then you can either make an Application solely or jointly with your husband/wife. This is now carried out digitally on an online portal that has been set up by the Courts. There are however some cases where you have to make a paper Application. Please contact us if you wish to understand more about this.
(c) On a sole Application, the person making the Application is known as the “Applicant” and the other party is referred to as the “Respondent”. If the Application is joint, the Applicant is referred to as First Applicant and the other party the Second Applicant. Whether you need to issue a sole Application or a joint one is something that we can discuss with you further.
(d) The Court requires your marriage certificate to be filed at the same time as you put in your Divorce Application. Please ensure you can provide a good quality copy of your marriage certificate and if it is in a foreign jurisdiction there is a legible and understandable translation.
This translation would have to be provided by a certified translator. The entire marriage certificate must be visible and legible. It will not be accepted if it is on separate pages. If you cannot locate your marriage certificate, then you can apply either to the venue where you were married or apply online to the General Records Office for a duplicate original.
The standard fee for the duplicate certificate is £11 with the GRO Index Reference number and will take approximately three days. If you do not have the GRO number, the Application cost is £14.00 and will take fifteen working days. However, for an increased fee of £35.00 the Application can be dealt with on an expedited basis. You can either ask for the certificate to be sent to you or directly to this firm.
(e) Once the necessary documents have been approved by you, and this firm is holding funds to cover the Court fee and signed terms and conditions, there are two choices of how to proceed. The most common practice is to notify your spouse or their solicitor of your intention to proceed with your Application for divorce.
In certain circumstances, you can invite your spouse to cooperate with a joint Application and share the cost of the fee. This will ensure that your spouse is aware that you intend to issue an Application to formally end the marriage and to deal with matters consensually i.e. jointly. The alternative, if there is a potential for a jurisdictional battle, is to simply issue your petition and arrange for it to be served.
In the absence of a response from your spouse or their solicitor within a fixed period, if the first choice is preferred, the letter will confirm that the Application will be issued. The notice period is usually fourteen days, this can be reduced to seven days if circumstances are urgent. The period can be longer if the other party’s personal circumstances are challenging, for example, illness or their commitments mean that accessing legal advice will have to be delayed or they are abroad.
If your spouse is not represented, the solicitors’ regulations require that he or she is notified of their option to seek independent legal advice to ensure they understand the consequences that divorce may have for them before signing any document. In most cases there will be an accompanying covering letter to your spouse and the contents of that letter will be carefully discussed with you.
(f) If your spouse cooperates and the deadline has passed, the Application with any supporting documents and fee will be sent to the Court electronically for them to issue the proceedings. The Court will verify whether the documents are correct, and a case reference number will be automatically generated. An Applicant is required to ensure that the Application has been served on the Applicant within twenty-eight days of issue.
The Court will send a link to the Respondent to access the Divorce Application and accompanying documents which confirm what is known as “Notice of Proceedings” and provide them with a form to respond which is called an “Acknowledgement of Service” form. If it is not possible to issue an Application digitally, a sole Applicant will also be required to provide written notice to the Applicant by post that the Application has been issued.
If the Application is served electronically, there is no need for the applicant to take further action unless notified by the Court to take further steps or that the Court received a notification of non-delivery. This means it is vital that you provide an up-to-date active email address and residential address for your spouse and note that guidelines confirm that this should not be your spouses’ work email or workplace address.
If you have no alternative but to serve on your spouse’s work email, in exceptional circumstances it is possible to ask the Court to issue your Divorce Application on paper which can then be posted to the Respondent. The twenty-eight day rule still applies.
(g) The Divorce Application requires your spouse to complete the acknowledgement of service form which asks a series of short questions and to return it to the Court electronically. If your spouse is represented by a solicitor, then all the papers will be dealt with by the solicitor appointed.
(h) We are often asked what will happen if the spouse fails to fill in the acknowledgement of service form or refuses to acknowledge it. If this is the case, it would then be necessary to consider other methods of securing proof that your spouse has received the divorce documents which is a process that we refer to as “service” or “being served”.
If an Application is posted and not served electronically then if there is no reaction from your spouse, it may be necessary to make an Application to Court for what is known as “deemed service” or in certain circumstances to ask the Court to dispense with service altogether.
Either Application needs to show the Court that any earlier attempts to serve the papers personally by appointing an enquiry agent/process server to serve the papers has been unsuccessful. Regrettably, if a Respondent is uncooperative, this will delay the Divorce Application and will increase costs. It is hoped that electronic service will override most of the historic difficulties with service.
(i) Once the acknowledgement of service has been received by the Court, the Court can then email to confirm this and we can then prepare your Application for a Conditional Order, which was previously known as a “Decree Nisi”. The Application is a proforma questionnaire which can be completed by your solicitor via the Court online portal.
If the Application had to be dealt with on paper i.e. by post, you will be required to sign and endorse a statement which is also a questionnaire with a Statement of Truth. These statements are equivalent to sworn statements, you must be truthful with the information that is given and upon which your solicitor will rely.
(j) At this stage the Court will consider the Application and if satisfied will certify that you are entitled to a divorce. Please note that the Judge always has authority to ask questions or seek clarification before agreeing to give a Conditional Order. The certificate then issued will confirm a date upon which a Conditional Order will be pronounced.
Six weeks and one day after pronouncement of the Conditional Order you will be entitled to apply for a Final Order at which time the marriage will come to an end, previously known as a “Decree Absolute”. Please note in most cases you will be advised not to apply for a Final Order until your finances have been properly determined either by an agreement lodged with the Court or by a Court Order being imposed. This is because a Final Order has the effect of altering wills and other very important financial issues such as pensions.
Disputing a Divorce
It must be noted that you cannot now challenge a divorce application other than for technical reasons. These reasons are that if the Respondent is not served within 28 days of issue, they can claim bad service and the Application would have to start again. It is vital that you understand that a Respondent’s right to defend a divorce has been removed under the new divorce rules. The Respondent cannot defend but can dispute the Application in very limited circumstances as follows:
- (a) The parties were never validly / properly married
- (b) The marriage or civil partnership has already been dissolved
- (c) The Court do not have jurisdiction for example neither party lives or has any connection with the England and Wales jurisdiction
- (d) The Application is fraudulent, or the procedure had been properly complied with
As mentioned above, you should not apply for a Final Order until your finances have been resolved. Also, the Court cannot make a permanent financial order until the Conditional Order has been pronounced. We would always suggest that advice is sought from a solicitor and we are of course happy to discuss these issues with you further.
Under this process the Respondent, i.e. the other party, can apply to the Court to stay or delay the proceedings until any concerns or disputes about finances and property are settled or imposed by the Court. If a Conditional Order has been granted and you are concerned that there should not be a Final Order, then we can make an emergency Application for either party to apply for a Final Order until your financial and property matters have been fully settled. It is open to either party to apply to the Court for a delay in the Final Order until finances have been resolved. This is the prerogative of either party.
Please note that it is imperative that you do not proceed to a Final Order without having advice from a solicitor about your options to deal with finances as you may severely prejudice your position if you do so. It is vital that you always strategize your position to ensure the best and most fruitful outcome, and we are happy to discuss all of these aspects with you.
Contact our Divorce Lawyers in London
Our expert divorce solicitors are here to help guide you through your divorce and all the elements that go with that, including childcare arrangements and financial settlements. We will also advise whether your case is appropriate for mediation, where you can receive guidance from our trained mediators and a collaborative lawyer.
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