We have outlined below what to expect when obtaining a divorce to show that, in the majority of cases, it can be less daunting than it seems. With reference to the flowchart below, here are the steps for obtaining a divorce in England and Wales. Please note that the following explains the process for an undefended divorce (most divorce cases in the UK). There are two further flowcharts at the bottom of this page, which outline the divorce process in more detail.
Currently, almost every divorce must be issued by filling out and filing Form D8, better known as a divorce application (previously known as a divorce petition). This can be done on paper. However, it is now more common and undoubtedly more practical to complete this form online. This form is also used for the dissolution of same sex civil partnerships; thus, the same process applies. This is the official start of the divorce process. Before this, however, you may want to notify your spouse or their solicitor that you intend to start divorce proceedings (unless there are good reasons for not doing so). A fee of £593 is payable for issuing a divorce application.
There are certain criteria which must be met in order to file an application. First, you must have been married for at least one year. Your petition will be rejected if this is not the case. Second, the court must be able to deal with your application. This primarily revolves around whether you and/or your spouse are habitually resident or domiciled in England and Wales.
There is only one ground for divorce in England and Wales, which must be included in the application – that the marriage has broken down irretrievably.
No fault
Previously, the party making a divorce application would have to prove that the marriage had broken down irretrievably. However, this is no longer the case. All divorce applications are now made on a ‘no fault’ basis. In practical terms this means that there is no longer a need to prove that the marriage has broken down irretrievably, the applicant only needs to state that it has.
Sole or Joint applications
It is now possible to make a divorce application on a sole or a joint basis (ie one party making the application on their own, or both parties making the application together). The decision to make a sole or joint application will be informed by the state of your relationship. Even if you are minded to making a joint application, it is sensible for each individual to instruct their own solicitor. Indeed, at present if you are making a joint application then the digital system does not accept the same solicitor acting for both parties.
Once the divorce application has been made, it then needs to be served on the respondent. If the application was made electronically, it is the default position that the court will effect service on the respondent. It is open to the applicant to ‘opt-out’ from court service of the divorce application, meaning that the applicant or their solicitor must serve the respondent instead.
If the applicant does opt-out, deciding to effect service themselves, the respondent should be served within 4 weeks of making the divorce application.
Along with the Acknowledgement of Service form, the respondent will receive a copy of the application and formal notice of the divorce proceedings.
Once these documents have been received, your spouse should then fill out the Acknowledgement of Service Form and return it to the court, who will then forward a copy to you.
In the case that your spouse does not acknowledge service, or you encounter problems, a process server may be needed to personally serve the petition on your spouse so that a formal statement of service can be sent to the court with an application for deemed service. In some cases, the court may dispense with service altogether.
An application for a conditional divorce order can be made 20 weeks after the original divorce application was issued by the court.
Sole application
If the original divorce application was made by one party (a sole application), either the applicant or the respondent to the original divorce application can apply for a conditional divorce order.
At the same time as applying for a conditional divorce order the applicant should send a copy of the conditional order application to their spouse.
Joint application
Similarly, where the original divorce application was made by both parties (a joint application), it remains possible for either party to apply for a conditional divorce order on their own. Again, the sole applicant for the conditional order should send a copy to their spouse.
It is also possible for the parties to make a joint application for a conditional order.
6 weeks after receiving your conditional divorce order, you may apply for a final divorce order.
Sole application
If the application for a conditional divorce order was made by one party, that same party must make the application for the final divorce order. Before doing so, the applicant must give 14 days’ notice to their spouse of their intention to apply to make the conditional divorce order final.
If the sole applicant does not apply to make the conditional order final, after 3 months it is open to their spouse to apply for a final divorce order.
Where the application for a conditional divorce order was made on a joint basis, either party can apply for a final divorce order. However, if one party does apply for the final divorce order on their own, they still must give 14 days’ notice to their spouse of their intention to apply to make the conditional divorce order final.
Joint application
Where the application for a conditional divorce order was made on a joint basis, it is open for the parties to apply for a final divorce order together, on a joint basis.
You will need to review your Will on divorce. Your Will does not automatically become invalid on divorce but any gift to your former spouse will take effect as if he or she died on the date of your decree absolute. It is therefore best to make a new Will or review an existing Will immediately after divorce, especially if your spouse was a beneficiary or a named trustee. We can recommend a number of private client lawyers who will be able to help you review your Will or assist you in preparing a new Will.
