I have just reviewed this post from 2013 when Legal Aid was removed for the purposes of covering the cost for advice regarding a divorce and so have updated it to provide a very basic guide where couples have agreed and wish to manage the process themselves. If in any doubt about any step then please contact me.
Warning: If you are not domiciled or habitually resident in England or Wales then please seek legal advice.
The only ground for a divorce is that the marriage has irretrievably broken down.
To demonstrate this, the Petitioner (person issuing the petition) must prove one of the following five facts:
a) the Respondent has committed adultery and that the Petitioner finds it intolerable to live with the Respondent. Do ensure that you have agreement with the Respondent to proceed on this fact with evidence (signed confession statement) to ensure no delays.
b) The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. As the wording of the particulars of behaviour can be inflammatory please try and discuss the content with the Respondent before issue and have agreement so that there are no surprises meaning the Respondent feels the need to defend the petition.
c) The Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
d) The parties 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 being granted
e) The parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Warning: The parties must have been married for at least one year before commencing divorce proceedings.
Once the papers have been completed they will need to be filed at a Regional Divorce Centre. You need to send:
1. The Petition in triplicate
2. Original marriage certificate – Warning: a photocopy will not be acceptable
3. Fee currently £550 made payable to HMCTS – If you are on a low-income you could be exempt from paying the fee. You will need to complete the Fee Exemption form
However you are now able to submit your application on line https://www.gov.uk/apply-for-divorce
The court will issue the Petition by sealing the documents and adding a case number. It will:-
1. Post a copy to the Respondent enclosing an Acknowledgement of Service Form
2. Post a copy of the sealed documents back to you for your records
3. Retain a set for the court’s records.
The online procedure is slightly different as you will receive confirmation by email that the petition has been issued.
The Respondent should within 8 days return the Acknowledgement of Service to the court, who will forward a copy to you.
Warning: this flowchart is for undefended divorces only and assumes cooperation by the Respondent. If there is no cooperation then seek legal advice. It can sometimes take the court a number of days to send the completed Acknowledgement of Service to you.
The Petitioner then exhibits a copy of the Acknowledgement of Service to a Statement in support of the Application for Decree Nisi and files it with the court – Warning there are 5 different forms depending upon which fact is relied upon, you will need to choose the one relevant to your petition. If submitting online the relevant form will appear automatically for you to complete.
Once filed with the court it will consider the papers and if in order the District Judge will certify that the marriage has irretrievably broken down by issuing a certificate and will set a date for pronouncement of Decree Nisi.
There is no need to attend court for pronouncement which will take place in open court (not currently due to COVID-19 but still pronounced). If costs have been claimed then pre COVID-19 attendance may have been necessary if this has not been agreed. Now the court will expect paper/email submissions on costs.
Warning: Take advice regarding financial matters before obtaining the Decree Absolute as certain pension and other spousal benefits can be lost.
6 weeks and a day after pronouncement of the Decree Nisi – complete and send the Application for Decree Absolute form to the court requesting the decree nisi to be made Absolute. If online then the form is automatically available for you.
The vast majority of divorces are undefended and require no attendance at court. An estimated timescale from start to finish will be 5-6 months depending on which area you live in the country and also the same for the online service.
It is very important to resolve financial matters prior to the decree absolute being made, particularly if you intend to remarry as the right to claim will be lost on remarriage.
Please do call if you are contemplating divorce as whilst this is a straightforward process to end the marriage, the main complexity will arise with resolving children and financial issues which will be inter related as part of the relationship breakdown.