Divorcing in England / Wales
To divorce in England or Wales, you must be able to prove that your marriage is in a situation of ‘irretrievable breakdown’. In other words, you, your spouse or both of you feel that you can no longer be married to one another. There are five grounds on which irretrievable breakdown can be considered. Click on the links below to learn more about them:
- Unreasonable behaviour
- Two years’ separation with mutual consent
- Desertion, when a spouse has left the marital home for more than two years
- Five years’ separation without consent
Those who have read about the French system of divorce will note that there is no divorce by mutual consent in England and Wales. If both spouses agree to the divorce, one of them has to petition for divorce and one the facts quoted above will still need to be established. Even if a spouse doesn’t agree with their partner’s stated reason, they can say so to the judge without contesting the divorce itself. This will be done on their reply to the judge. Doing so doesn’t affect their rights on matters relating to children or financial support. In England and Wales, uncontested divorce is by far the most common route as it is significantly quicker and cheaper. It’s worth mentioning that we talk about ‘England and Wales’ because they are considered a single legal jurisdiction, separate to the jurisdictions of Scotland and Northern Ireland.
What are the steps?
Whatever your nationality to divorce in England or Wales you must have been married for at least one year, and you or your spouse must have lived in England or Wales during the year preceding your petition for divorce. First, a divorce Petition at the County Court or the Principal Registry of the Family Division is filed by one of the spouses. Only one spouse is allowed to petition for divorce. This petition form must indicate one of the grounds listed above to establish the irretrievable nature of the breakdown.
The original copy of your marriage certificate, together with £410 for court fees and £45 for the Decree Absolute (the legal document dissolving the marriage) must be sent to the Court. If the petitioner has children, he or she must also submit a Statement of Arrangements for Children form detailing the proposed arrangements such as residence, child custody, maintenance, contact, schools, and health or disability provisions.If all the required documents are in order, the petition is officially served by the court to the parties together with a Notice of Proceedings form and with an Acknowledgement of Service form.The petitioner must keep the Notice of Proceedings form as it contains the case number and tells him or her what to do next. The respondent (the opposing party) has to answer the petition by returning the Acknowledgement of Service form to the court within 8 days, indicating whether they agree or disagree with the divorce petition. This is called ‘giving an answer’. This document informs the court that the respondent has received the petition. Once the respondent has replied, if they are contesting the divorce, they have up to 21 days to explain why they are defending the divorce. They may opt to start their own divorce proceedings (e.g. on the grounds of, say, adultery or unreasonable behaviour), providing they have supporting evidence to back their claim. As indicated above, the Defended Divorce path is rarely used. If the judge agrees to the divorce, the court sends to both parties:
- A certificate of entitlement to a decree
- A form stating that arrangements for children aren’t a reason to delay the divorce
- Decree Nisi, an order stating that the court is satisfied the petitioner is entitled to a divorce
After six weeks, the petitioner can apply for a Decree Absolute to end the marriage. This delay exists to allow time for the spouses to discuss financial consequences and other issues. After checking that everything is in order, particularly that arrangements made for the children are suitable, the court sends the Decree Absolute to the parties. The divorce is then final.
What are your options if you and your spouse can’t agree regarding the consequences of your divorce?
If, during the divorce proceedings you are unable to reach an agreement on issues regarding your children and your financial interests, you can ask the court to settle your differences. The court will always encourage spouses to find an agreement, usually through mediation. It is strongly advised to discuss the different options available with a solicitor in order to make a fully informed decision.
What to do if you disagree on issues related to the children?
Courts do not automatically make orders about children. Indeed in England and Wales court expects parents to sort out child care arrangements between themselves, even if this process takes them considerable time. However, you have the option to apply for a Court Order regarding contact or residence or any dispute regarding the child’s schooling or medical treatment. In extremely difficult situations, the judge will send a CAFCASS officer (The Children and Family Court Advisory and Support Services for England and Wales) who will draw up a Court Welfare Report. They will talk to parents and children together and/or separately, and if necessary, to doctors, social services, schools, police department etc. The judge may ask to talk to them but this is not usual practice. The child must be at least 10 years old.
What to do if you disagree on issues related to your finances?
On financial matters, it is possible to apply for a Financial Order called an Ancillary Relief Order. There are three stages to this process and both spouses must attend each hearing. The First Appointment: this first hearing must be well prepared by the parties as both spouses will need to provide the judge with a number of documents detailing their financial situation. The judge will consider the case and may ask for further information (e.g. an estimate of property assets). If the parties reach an agreement during this hearing, the judge validate this agreement through a Final Order. The Financial Dispute Resolution (FDR): this second hearing is a new opportunity for the spouses to negotiate, and the court expects them to reach an agreement. The judge encourages them to make proposals, and expects each party to consider them carefully. The judge will also give his opinion on the likely outcome of the proceedings depending on the parties’ respective demands. The Final Hearing: this will only occur if the negotiations are still unsuccessful, and ends with a judge’s ruling on the disagreements. The discussions are confidential and can be particularly distressing as the spouses are likely to be cross-examined by the lawyers of both parties. The judge carefully examines the situation and needs of the children as their interests are always considered paramount. The judge may order a spouse to pay periodic maintenance to the other and/or a lump sum. He may also order a property transfer or issue a Pension Sharing Order. The judge’s decision is final.
Want to ask a question?
For a confidential discussion about your particular situation or requirements, you can contact Peggy Lethier by telephone or email: Contact