Getting A Divorce

Divorce in England & Wales is a legal process to end marriage between husband and wife after the relationship between them has broken down irretrievably. An application for divorce in England & Wales is made using application form D8.

You can get divorced in England & Wales only after you have been married for at least one year.

If you marriage was not consummated, you may be able to apply for annulment of your marriage even if you are married for less than a year.

You can get divorced in England & Wales if all of the following are true:

• you’ve been married for over a year
• your relationship has permanently broken down
• your marriage is legally recognised in England & Wales (including same-sex marriage)
• Either you or your husband/wife is habitually resident in England & Wales

A clean break divorce is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement order. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Yes, you can start divorce proceedings in England provided that you have a valid marriage certificate (and certified translation, if the marriage certificate is not written in English). The key issue is determining whether the marriage is valid and legal in the country within which the ceremony took place, with the local custom being observed. If the marriage has been carried out in accordance with the local laws and customs of the country in which it took place, it is usually a valid legal marriage.

You should also meet all of the following requirements for getting divorced in England & Wales:

• you’ve been married for over a year
• your relationship has permanently broken down
• your marriage is legally recognised in England & Wales (including same-sex marriage)
• Either you or your husband/wife is habitually resident in England & Wales

Depending on the personal circumstances of the petitioner and the Respondent, the following other matters may also arise in the divorce proceedings:

• Divorce Financial Settlement
• Child Arrangement Orders
• Spousal Maintenance UK
• Non-Molestation Orders & Occupation Orders

This varies from court to court and from case to case, depending on the complexity of the case. An uncontested divorce with no financial settlement issues can take up to 6 months whereas a contested and complicated divorce can take much longer than 6 months and time would vary depending on the complexity of the matter.

The court fee for filing a divorce in England & Wales is £550 which needs to be paid at the time of submitting your divorce petition to the family court.

Additionally, you will pay the legal costs of divorce solicitors if are represented by divorce lawyers in your divorce matter.

Uncontested Divorce

An uncontested divorce is a divorce process where the Respondent to the divorce does not defend or contest the divorce. It is possible for the Respondent to disagree with the grounds for divorce yet agree to divorce taking place on the grounds that the relationship has irretrievably broken down between the Petitioner and the Respondent.

Contested Divorce

A contested divorce is one where the Respondent to the divorce petition decides to contest or defend the divorce. In other words, Respondent objects to divorce taking place in a contested divorce. A contested divorce is a more complicated procedure and will involve the divorcing couple having to attend family court for hearings. In very rare cases, Respondent can succeed in contesting a divorce in England & Wales. In the event of Resondent failing to defend the divorce, the family court is likely to make a legal costs order against the Resondent.

The grounds for divorce are that the marriage has broken down irretrievably due to one of the facts as listed below:

• Adultery - The Petitioner alleges that the Respondent committed adultery and the marriage has broken down irretrievably.
• Unreasonable Behaviour - The Petitioner alleges that the Respondent has behaved unreasonably and the marriage has broken down irretrievably.
• Desertion Of The Petitioner By The Respondent - The petitioner can apply for divorce on the grounds that the Respondent deserted the petitioner more than 2 years ago and the marriage has broken down irretrievably.
• 2 Years Separation And Respondent Consenting To Divorce - Petitioner and Respondent have lived separately for 2 years; Respondent consents to divorce taking place and the marriage has broken down irretrievably.
• 5 Years Separation - Petitioner and Respondent lived separately for 5 years and the marriage has broken down irretrievably.

A decree nisi is a document that says that the court does not see any reason why you cannot divorce. You can apply for a decree nisi if your husband or wife does not defend your divorce petition.

The decree absolute is the legal document that ends your marriage. You need to wait at least 43 days (6 weeks and 1 day) after the date of the decree nisi before you can apply for a decree absolute.

To apply for a divorce you’ll need:

• your husband or wife’s full name and address
• your original marriage certificate or a certified copy (and a certified translation if it’s not in English)
• proof of your name change if you’ve changed it since you got married - for example your marriage certificate or a deed poll

You must try to find your husband or wife’s current address if you do not know it. The court will need it to send them a copy of the divorce petition.

If you can prove that your spouse received the divorce petition, you can apply for the deemed or substituted service. You can prove service by using a court bailiff or process server. 

Unless your spouse contests the divorce petition you filed, you do not have to go to court for divorce to take place. Only in contested divorce cases, the parties will  have to attend court hearing for the divorce to be decided by the court.

Who pays the divorce legal costs will normally depend on the grounds for divorce. If your petition is based on unreasonable behaviour or adultery then you may be able to apply to the court for your legal costs to be paid by your spouse.

You should reach an agreement on the issue of costs at the outset of the divorce so that needless conflict is avoided down the line. If you are hoping that your costs will be covered by the other side, then be sure to discuss the matter with your divorce solicitor during your first interview.

Whethe or not you need a divorce solicitor to handle your divorce case is dependent on the complexity of the divorce matter and your ability to handle legal matters on your own. You normally engage a divorce solicitor for your divorce case in the following circumstances:

• if you know that your spouse is likely to contest the divorce and will be unwilling to divorce;
• if there are children involved and your spouse may not be willing to reach a mutual agreement regarding child arrangements;
• If you and your spouse own significant assets or are in business together;
• if there are overseas connections;
• if one of you has been declared bankrupt;
• if you wish to be claim spousal maintenance and be financially dependent on your spouse;
• if the whereabout of your spouse are unknown;
• if your spouse is unlikely to respond to your divorce petition.

Divorce mediation is a method by which separating couples can agree and resolve the typical issues involving finances and children that arise during the divorce process. The mediator is a trained individual who is impartial and will act much like an umpire, guiding you and your spouse through face to face discussions about important matters such as divorce financial settlement and child arrangements.

Once an agreement has been reached, the mediator will draft a ‘Memorandum of Understanding’ to formally set out the proposals. Your divorce solicitor will then use the ‘Memorandum of Understanding’ to draw up your official agreement and further advise you.

Mediation is not suitable for all situations, but it is the right approach for many people and if there is a need for court proceedings to be issued then you will usually be expected to at least have attended a meeting concerning mediation (a Mediation Information and Assessment Meeting – MIAM). If your divorce solicitor believes that a MIAM is not appropriate or necessary, perhaps because divorce proceedings need to commence urgently or because domestic violence is involved, then they will let you know.

Unless the parents have reached an agreement with regards to child arrangements, one of the parties to the divorce proceedings will have to file a ‘Statement of Arrangements for Children’. This form provides the court with basic details about the children including their dates of birth, where they go to school and who is responsible for their care when the parents are working, if relevant. The form only serves to provide information and will not form the basis of any decision of the court.

In most cases, the parents will make these decisions themselves where possible, sometimes using mediation to assist in keeping discussions on track and in the best interests of the children.

It is worth noting that the court does hold the power to order that a Decree Absolute is not granted until it is satisfied with the arrangements for the children, although it is rarely the case that there will be any objection by the court provided the arrangements are reasonable and there are no concerns surrounding child protection.

The adjustment of assets/finances covered by the financial court order may include the following:

• property
• money
• shares
• savings
• pensions
• debts
• children/spousal maintenance

Normally, the behaviour of your spouse including adultery or unreasonable behaviour does not affect the divorce financial settlement. The grounds for divorce you use to obtain a divorce have no bearing on your financial settlement. Extreme behaviour may be taken into account by the court, for example, if one partner's violence has had a lasting effect on the other. If one partner recklessly or deliberately sabotages the financial position, for example, by spending recklessly or destroying assets, this could also be taken into account.

A clean break divorce financial settlement is where no ongoing financial commitments remain between you and your spouse. The phrase ‘a clean break’ is particularly used as the opposite of an order where there is ongoing spousal maintenance payable, usually monthly, from one spouse to the other.

A clean break is only possible in relation to the financial claims between spouses. It is not possible to have a clean break in relation to financial obligations towards your children.

In case you and your ex-partner have no assets to divide, you should also apply for a financial settlement. It’s important to do so, even if you don’t have any assets to divide at the time of the divorce. There’s no guarantee you won’t come into some money in the future and if you haven’t obtained a financial settlement, your ex is still within their legal rights to make a financial claim.

Once a 'clean break' agreement of this kind has been ratified by court order, neither of you will be able to go back to court in the future to ask for maintenance or further transfer of assets. This gives both partners a much greater degree of certainty and allows them to completely disentangle their individual financial affairs.

Not usually. It may be unwise to make excessively large payments to your spouse, because it might be argued that this shows both their need for such payments (or an equivalent transfer of assets) and your ability to pay.

Even so, any financial settlement should take into account the longer-term history of the marriage and future financial prospects.

On the other hand, if your spouse needs maintenance while you are separated, it would normally be sensible to provide it. Failure to do so is likely to make your spouse more hostile towards you.

Your spouse might apply to the court for an interim financial order requiring you to pay an appropriate level of maintenance. Both of these are likely to increase the overall level of ill feeling - and costs - in reaching a final agreement.

You will still have the same rights to occupy the home as you had before and can move back in if you choose.

There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need - such as important documents - with you in the first place.

There may also be other considerations so it is advisable to take advice before moving out.

If your spouse can make withdrawals from a joint account without your agreement, you run the risk that some or all of the money will be taken. You will also be jointly liable for any debts run up on the account.

If you need access to the money or if you suspect that your spouse may misuse it, you may want to close the account. The same applies to any other form of joint borrowing or spending facility, such as a joint credit card.

However, if you suddenly freeze accounts that your spouse needs for living expenses, this will create problems. Your spouse will want you to make appropriate maintenance payments and may apply to the court for an interim financial order.

If your spouse is the sole owner of the family home, you should apply to the Land Registry to register an interest in the property. This will prevent the house being sold without your consent.

If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against your former spouse. He or she will still have the same right to make a financial claim against you as before.

If you have previously reached a clean break settlement, the remarriage (or cohabitation) will normally have no effect - you have already made a once and for all agreement.

If you are paying your former spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).

In any case, if your former spouse's financial position improves, you can apply to the court to stop paying maintenance or to pay a reduced amount.

If you are receiving maintenance from your former spouse, you should normally continue to do so after he or she remarries.

Obtaining a divorce typically takes about six months. The process can take longer if anyone fails to deal with the various pieces of paperwork promptly.

How long financial settlement takes depends very much on your relationship with your spouse and the complexity of your financial affairs. Often, the financial settlement can be negotiated over the same period as the divorce proceedings, and is then confirmed by a consent order.

Where there is an agreed financial outcome, it is possible to obtain a court order embodying the agreement (consent order) and your decree absolute within 6 months from start to finish.

Where an agreement is not reached, it could take between 12 – 18 months to conclude form the date an application for financial settlement is made to the court.

In most cases, both parties will have their own solicitor and will be responsible for their own legal fees. Only in unusual circumstances will the court consider conduct in the proceedings or the process of disclosure as a justification for an order for costs being made against the other party.

While negotiating a financial settlement you each use - and are responsible for paying - your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.

You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details. 

The court has power to make orders for a spouse including:-

• Periodical payments (maintenance or alimony)
• Secured provision (maintenance that is charged against an asset)
• Lump sum (a cash payment)
• Transfer of property (where one legal ownership of an asset is taken away from one spouse and transferred to the other)
• (except upon decree of judicial separation) a pension  attachment and a pension sharing order
• Agreed child maintenance orders, school fees orders and/or top up orders where there is a maximum Child Maintenance Service assessment.

Usually not unless you are about to receive the inheritance.

Pre Nuptial Agreements are not legally binding in the UK but are considered to be pursuasive for the judge to exercise discretion in deciding the financial settlement by giving weight to the pre nupital agreement. Pre-Nups, Post Nups and Pre-civil registration agreements cannot exclude the authority of the Court when dealing with financial issues when a marriage or civil partnership irretrievably breaks down. When divorce arises, the court has discretionary powers to distribute assets as the Judge sees is in the best interest of the parties/children/individual circumstances. The prenuptial agreement which has been entered into fairly and after taking appropriate legal advice may have persuasive authority for the judge to exercise discretion and give weight to the same in distribution of assets.

The caveat is that while UK courts will recognise prenuptial agreements, they also still have the ultimate discretion to ignore any agreement reached if the agreement is deemed to be unfair to any children of the marriage.

You can go to court to get the financial settlement altered.

You can go to court to ask them to change the maintenance order to reflect your circumstances. For example, you might do this if you lose your job and cannot find another one.

It is possible to reopen a divorce financial settlement, but extremely rare. In most circumstances, once a financial settlement has been officially recorded in the form of a consent order, the financial ties between the divorcing couple are broken and neither of them will be entitled to make financial claims in the future.

However, a precedent set during the case of Barder vs Barder (1987) means that a court may allow a financial settlement to be reopened if something later happens that alters the principle on which the original consent order was made.

Before the court will agree to reopen a settlement, four key factors need to be satisfied:

• A new event(s) occurs that invalidates the basis, or fundamental assumption, on which the original consent order was made.
• The new event(s) must have occurred within a relatively short time after the consent order was made.
• The request to re-open the financial settlement is made soon after the new event occurs.
• The appeal does not prejudice any rights to assets acquired by third parties (for example, if a house has been sold to an unconnected third party).

Successful applications to reopen financial settlements are rare but they do happen – for example, in the case of Critchell v Critchell (2015).

This will depend on many factors including:

• How long you were married
• The standard of living you enjoyed before the divorce
• Your respective financial needs and the financial needs of any dependent children
• The current earnings of each party
• The potential earning capacity of each party in the future
• The contribution made to the marriage, either financial or by caring for children and looking after the family home

For example, if a young couple with no children have been married for only a short time and both are working, then it may be fair for them both to leave the marriage with no ongoing financial ties and taking with them what they brought into the marriage.

If a couple have been married for 25 years and by agreement the wife gave up a career to bring up the family at home, while the husband became the sole bread winner, then the wife's future earnings capability may be severely compromised.

In these circumstances the wife should not be penalised for her lack of earnings ability and may be entitled to ongoing spousal maintenance.

When a marriage or civil partnership ends, courts deal with the pension arrangements in one of 3 ways.

1. You’re given a percentage share of your former partner’s pension pot. This is known as pension sharing. The money that you get from the pension pot of your former spouse or civil partner is then legally treated as your money.
2. The value of a pension is offset against other assets. This is known as pension offsetting. For example: you keep your pension and your former spouse or civil partner keeps the home.
3. Some of your pension is paid to your former partner. This is known as pension attachment or sometimes pension earmarking. This is like a maintenance payment directly from one person’s pension pot to their former spouse or civil partner. Under this arrangement, money from your tax-free lump sum can also go to your former spouse or civil partner.