In order to successfully petition for divorce in England or Wales, you must’ve been married for a year or more and you’ve to show that your relationship with your spouse has permanently broken down.
In most cases, it’s also necessary to have a permanent home in England or Wales. The rules governing residence and divorce can be confusing, so if you’re not sure if you meet the relevant criteria, it’s important to get advice from a divorce solicitor.
Grounds for divorce
There is only one ground for divorce in the UK, which is your marriage has broken down irretrievably. You must be able to prove this by citing one of five reasons. These are:
- Adultery - The definition of this is stricter than many people realise. In order to cite this reason, you’ve to be able to prove that your spouse had sexual intercourse with another person of the opposite sex. Also, you disqualify yourself from being able to use adultery as your reason for divorce if you lived with your spouse for a period of six months or longer after discovering the infidelity.
- Unreasonably behaviour - This means that your spouse behaved in such a way that you can’t reasonably be expected to remain with them in the same home. Examples include physical violence, drug-taking or drunkenness, verbal abuse, or refusal to pay for housekeeping
- Desertion - This is defined as your spouse leaving you without a good reason, without your agreement and to end your relationship. They must’ve been gone for more than two years within the last two and a half years.
- Living apart for over two years - If you’ve lived separately for more than two years and you both agree to the divorce, you can cite this as a reason.
- Living apart for at least five years - If you’ve lived separately for five years or more, you can apply for divorce even if your spouse doesn’t agree.
If you and your husband or wife can agree on the reason for divorce, this’ll make the process much quicker and easier, so it’s worth trying to reach a consensus before you file a petition.
Starting the process
Either party can file for divorce. The person who does this is known as the petitioner. To take this step, you’ll need to complete a form known as a D8 and include details such as your full name and address, your spouse’s full name and address and your original marriage certificate or a copy from a register office.
Usually, the person who petitions for divorce has to pay a fee of £550. However, if you’re on a low income or in receipt of benefits, you may be eligible for financial help. Also, if you think your spouse should pay, you can tick a box on the form requesting that the court considers asking them to cover this expense.
You’ll need to send three copies of the forms to your local divorce centre, or four copies if you named a person your spouse committed adultery with. Make sure you keep your own copy of the forms.
Within a few days of getting the petition, the court will respond confirming receipt of the document and it’ll pass a copy of your petition onto your spouse (who’ll be referred to as the ‘respondent’). If your spouse has instructed a lawyer to act on his or her behalf, the documents will be sent to them. If you cited adultery and named the other party, they’ll also be sent a copy.
Within eight days of receiving the petition, the respondent is required to issue a reply stating whether or not they intend to contest it. If they do, they’ve a further 21 days to send an ‘Answer’ to the court explaining why they’re defending the divorce. They may be required to pay an additional fee of £245. Alternatively, the respondent may decide to begin his or her own divorce, for example if they’ve evidence of unreasonable behaviour or adultery. To do this, they may have to pay £550.
If your spouse decides to defend the divorce or to file their own petition, you may have to attend a court hearing during which you’ll try to come to an agreement with each other. It’s worth noting that in most cases, separating spouses reach an agreement before this happens in order to avoid the added expense and stress associated with going to court.
Failure to respond
If your spouse fails to return the acknowledgement of service form within eight days, you can proceed with the divorce if the court decides your spouse has received the papers. Alternatively, the court may decide to get the papers delivered to your spouse personally to ensure there’s proof of receipt.
If your spouse fails to respond within the time limits but you know they intend to defend the divorce, you can apply for directions for trial.
Apply for a decree nisi
If your spouse doesn’t defend the divorce, you can apply for a decree nisi. This is a document that states the court sees no reason why you can’t be granted a divorce. If your spouse does contest the divorce, you’re still able to apply for this document, but you’ll need to attend a court hearing where your case will be discussed. A judge will then decide whether to grant you a decree nisi.
If your application is approved, you and your spouse will be sent certificates stating the time and date when it’ll be granted. If your application is rejected, you may be sent a form called a ‘notice of refusal of judge’s certificate’ specifying why you aren’t permitted to divorce. This form will also tell you what steps to take next. For example, you might be asked to provide additional information or you might be required to attend a hearing.
Apply for a decree absolute
Six weeks and a day following the granting of the decree nisi, you can submit an application for a decree absolute. This is the legal document that officially ends your marriage. You must apply for the document within 12 months of getting your decree nisi otherwise you’ll have to explain to the court why there’s been a delay.
A crucial point to be aware of is that if you want an arrangement for dividing property and money to be legally binding, you’ve to apply to the court for this before you submit your application for a decree absolute.
Once you’ve your decree absolute, you’re officially no longer married. This means you’re free to marry again if you want.
How Slater and Gordon can help
Understanding the steps you need to take to get a divorce can help you to feel more certain about the future, but the process of legally separating from your spouse may still be stressful and difficult. To make your life easier, you can seek expert legal help from the family law solicitors at Slater and Gordon Lawyers. Our team are highly trained and experienced in all aspects of divorce law and will guide and support you each step of the way. We’ll cut through the legal jargon and ensure you understand exactly what’s happening at all times.
Many of our family solicitors are members of Resolution, an organisation committed to a constructive approach to family law. You can rely on us to help you achieve the best possible outcome for you and your family, minimising costs and where possible avoiding the courtroom.
To find out more about how we can help you to protect your rights while also streamlining the legal process, don’t hesitate to call us on freephone 0808 175 8000 or contact us online.