Common questions about divorce.
Can we divorce whilst still living together?
Yes, it is possible. This situation is not uncommon and many couples choose to continue living in the same house for various reasons. These could include financial concerns, the wish to maintain a stable environment for any children, or simply to avoid the upheaval of moving out.
Since the introduction of no-fault divorce, couples no longer need to demonstrate that they are living separate lives or blame one party for the breakdown of the marriage.
What is the 12-month rule in divorce?
The 12-month rule is a requirement that couples must be married for at least 12 months before they can apply for a divorce. The rule also applies to the dissolution of a civil partnership.
The 12-month period starts from the date of the marriage or civil partnership. If you want to end your marriage or civil partnership within the first 12 months, you may be able to seek the annulment depending on the reasons.
Alternatively, you could enter into a Separation Agreement to confirm your intention to end your relationship, and address any financial and childcare matters.
Can I end my marriage within 12 months?
For a divorce or dissolution of a civil partnership you must wait at least 12 months before being able to commence proceedings to end the relationship. Whilst you cannot get a divorce or dissolution, there are some alternatives available within the 12 months:
If you believe your marriage was not legally valid, you may be able to obtain an annulment on the grounds it is a void marriage.
Alternatively, you could claim the marriage is a voidable marriage if certain conditions are met such as the marriage was not consummated, or the wife was pregnant by another man at the time of marriage.
You can enter into a Separation Agreement, which lets you and your partner agree on separation details in preparation for divorce or dissolution.
Do I need a reason to divorce?
In England & Wales, you do not need to provide a specific reason for divorce. You simply declare that your marriage has irretrievably broken down without the need for evidence or explanation.
Does it matter who files for divorce first?
It really does not make any difference who commences the divorce, as no advantage is gained. If you both agree that the marriage has irretrievably broken down, it’s possible to present a joint application to the Court which makes for a more amicable divorce.
How do you prove a marriage has irretrievably broken down?
By signing the Statement of Irretrievable Breakdown in the divorce application. No other facts or information is required to prove the irretrievable breakdown of the marriage under no fault divorce law. The signed statement is sufficient evidence to confirm the marriage has irretrievably broken down.
Do I need to tell my spouse that I intend to divorce them?
There is no legal requirement to notify them of your intention to divorce. Whether or not you inform them before starting the process is more of a personal and ethical consideration. They will however find out when the court sends them the divorce application for their acknowledgment.
Does my spouse need to cooperate with a divorce?
Your spouse cannot prevent a divorce from taking place, but there is a specific form that they should complete and return. If they refuse to do so, you will still be able to progress with the divorce, but it may take longer.
If they do not acknowledge receipt of the divorce papers, a Process Server can be instructed to personally serve further divorce papers on your spouse. Once served, the divorce can proceed without your spouse’s involvement.
Can I divorce in England if my ex lives abroad?
As long as one party is habitually resident or domiciled in England and Wales for at least a year, it is possible to apply for a divorce in England. This is even if the other party lives overseas. It is only necessary to have an address and email for the other spouse to proceed with a divorce
Is behaviour still a ground for divorce?
Under the no-fault divorce system behaviour is no longer required as a ground for divorce. An individual or a couple jointly, can file for divorce on the basis of the irretrievable breakdown of the marriage without citing any specific reasons or assigning blame.
Behaviour that occurred in the marriage may however be the cause for the breakdown of the marriage.
Is divorce automatic after 5 years separation?
Lengthy separation does not lead to an automatic divorce. A person who wishes to get divorced must make a formal divorce application to the court stating that their marriage has irretrievably broken down. It is unnecessary to provide a reason or be separated for a specific time to get divorced. While separation may be the reason for the breakdown of the marriage, it does not trigger automatic divorce proceedings.
Is desertion now irrelevant in divorce?
Under no fault divorce, desertion is no longer relevant. The only requirement to obtain a divorce is that one spouse, or the couple jointly confirm that the marriage has irretrievably broken down. The cause for the irretrievable breakdown of the marriage may however be that one spouse abandoned, or deserted the other.
The date of one spouse leaving the marriage may be relevant in the financial matters arising from the divorce to identify matrimonial and non-matrimonial assets.
How can I get a quick divorce?
Divorce in England and Wales has a timetable which includes the mandatory 20-week reflection period. The timescale is the same for every divorce. On average a divorce takes 30-35 weeks. Where you can save time is by dealing with financial matters within the 20-week period.
How long does a divorce take?
The shortest time to complete a divorce or dissolution in England and Wales is 29 to 30 weeks. This takes into account the 20-week reflection period and the 6-week waiting period between the Conditional Order and Final Order.
Receiving divorce papers
I’ve received a divorce application by email – what should I do?
Being served with divorce papers can be overwhelming and upsetting. This is what you will receive and what you should do. The divorce centre will send you the following documents:
- Your spouse’s application for divorce – this document will contain basic factual information about your relationship, and a statement that they consider the marriage has irretrievably broken down.
- A notice of proceedings- This will contain the case number and an access code.
- An Acknowledgement of service form – As the respondent, you should complete the acknowledgement of service form within 14 days of receipt, by answering all the questions and returning it to the court.
What is an Acknowledgement of service form in divorce?
An Acknowledgment of Service form is the document that is used by the Respondent to acknowledge receipt of a divorce application and accompanying documents. The person receiving the divorce application has 14 days from the date of receipt to return the completed Acknowledgment to the court. If the Respondent fails to do so, the Applicant will take additional steps to prove that the Respondent has received the divorce application. This could include personal service of a further copy of the divorce application.
Can I refuse to cooperate with a divorce?
You can, but it will not prevent the divorce or dissolution from proceeding, and is likely to result in extra costs which you may be ordered to pay.
If you don’t respond to an application for divorce or dissolution, your spouse or partner will take extra steps to progress with the end of the relationship. This could include instructing a process server to personally serve you with another set of court documents at your residence or place of work. Once there is proof that you have been served, the divorce or dissolution can proceed.
Can you defend a no-fault divorce?
Since the introduction of no-fault divorce, it is no longer possible to dispute a divorce on the grounds that you do not agree. It is only possible to defend a divorce application on exceptional legal reasons, such as jurisdictional issues, or if you can prove that the marriage was never valid. The person receiving the divorce application cannot dispute the other party’s belief that the marriage has irretrievably broken down.
The divorce Conditional Order
How do I apply for a divorce Conditional Order?
Before an application for the Conditional Order can be made, it is necessary to wait 20 weeks from the date the divorce application was issued by the court. If the application for divorce was made online, a notification will be sent once the Conditional Order can be applied for. If the application was made by post, a Form D84 must be completed.
Either applicant can apply for the divorce Conditional Order, if the application for divorce was jointly made. The court normally takes a few weeks to review the application and once approved they will set a date for the Conditional Order to be pronounced.
Why do I have to wait 20 weeks to get divorced?
The reasoning behind the 20-week waiting period in divorce is threefold:
- To allow the couple time to reflect whether the divorce or dissolution is actually something they want. The 20 weeks provides an opportunity for reconciliation.
- To allow the couple to resolve practical matters such as finances and child arrangements. Negotiations over these issues can take place within the 20-week period.
- To avoid hasty divorces. The waiting period aims to prevent someone from rushing through a divorce.
Why is it called a Conditional Order?
A divorce conditional order is called “conditional” because it represents the penultimate stage in the divorce or dissolution process. A conditional order indicates that the court has conditionally approved the divorce or dissolution, but it is not yet final.
To finalise the divorce or dissolution, it is necessary to wait 6 weeks and 1 day before applying for the Final Order. The period of 6 weeks and 1 day gives a couple a final opportunity to reconsider their decision as to whether they wish to legally end their relationship.
What happens if I don’t apply for a Conditional Order?
If you are the Applicant and don’t apply for a divorce Conditional Order, the divorce will remain incomplete and cannot move forward. You will remain married.
The Respondent could apply to the court to dismiss the divorce application, and issue their own divorce application against you. There may be cost implications if this happens.
In extreme cases of prolonged inaction, a court could dismiss the divorce application themselves.
Do I need to go to court for the Conditional Order?
Neither party is required to attend court unless they intend to object to the making of the Conditional Order.
Can I change my mind in a divorce?
The specific purpose of the 20-week waiting period is to allow the parties – time to reflect. If you decide the marriage has not irretrievably broken down – you can withdraw the application for divorce at any time before a Final Order is made.
Does a Conditional Order mean you’re divorced?
A divorce Conditional Order is an important stage of a divorce, but it DOES NOT mean you are divorced yet. The Conditional Order confirms that a person is entitled to a divorce, but they still must wait at least 6 weeks and 1 day before they can apply for the Final Order to end their marriage. When the Final Order is granted – you are divorced.
Even after a Conditional Order is granted, it’s still possible for parties to stop a divorce if they both agree, as long as the Final Order has not been made.
Can a Conditional Order in divorce be refused?
A divorce Conditional Order can be refused in the following limited circumstances:
- If the marriage is not recognised in England and Wales, or,
- the court does not have jurisdiction over the case, or
- the marriage is deemed invalid.
A refusal is unlikely if the divorce application was accepted by the court at the time of issue.
Can the 20-week waiting period in divorce be reduced?
A Judge can reduce the waiting period in exceptional circumstances such as where one of the couple is terminally ill and there is a concern that the divorce may not be concluded prior to that person’s death. In the first reported case of its type, a Conditional Order was made 10 weeks after the divorce application was issued as the applicant had terminal health issues.
How long between the Conditional Order and Final Order?
The time between a divorce Conditional Order and a Final Order is 6 weeks and 1 day. This is the minimum waiting period before you can apply for the Final Order. The Final Order ends a marriage and allows the parties to remarry. Unless you have finalised financial matters, it is usually a good idea to delay applying for the Final Order until you have a financial settlement in place approved by the Court.
The Final Order in divorce
How final is a Final Order in divorce?
A Final Order legally ends a marriage or civil partnership and is irreversible once pronounced. Once a Final Order is granted, the divorce or dissolution is final and cannot be undone. If you decide to reconcile with your former spouse or partner after receiving the Final Order, your previous relationship will have ended.
It is important to remember that while a Final Order legally ends a relationship, it does not automatically resolve financial matters between the parties.
Can a Final Order in divorce be reversed?
In an April 2024 case it was confirmed that a Final Order once made CANNOT be reversed. Accordingly, before completing the divorce, make sure a Court approved financial agreement is in place. Failure to do so could result in the loss of death in service benefits, and affect inheritance rights.
What happens if you don’t apply for a Final Order in divorce?
The Order that ends a marriage will only be issued if one party applies for it. A Court does not automatically issue a Final Order.
An Applicant has up to 12 months after receiving the Conditional Order to apply for the Final Order. If they apply after 12 months, the Court will need an explanation for the delay. If the applicant does not apply for the Final Order, the other spouse can apply for it 3 months after the applicant was first able to apply.
Divorce and finances – Frequently asked questions
Does the divorce process UK automatically deal with financial matters?
A Final Order in divorce ONLY brings a marriage to an end. It does not deal with financial matters. Financial matters must be dealt with separately.
Is there a time limit to complete financial matters after divorce?
There is NO time limit! In a 2023 case, a wife was allowed to make a financial claim against her husband 29 years after their divorce. Unless you have an Order dealing with financial matters approved by the Court – financial claims are still alive.
Accordingly, it is a good idea to finalise financial matters as soon as possible.
Should I finalise the divorce or finances first?
It is better to reach a court approved financial agreement before completing the divorce. The Final Order of divorce affects yours and your spouse’s claims on each other’s pensions and estate.
If you apply for the Final Order of divorce before reaching a financial settlement, and your spouse dies – you will not be entitled to claim on their estate or receive death in service benefits. It is therefore better to delay finalising the divorce until you have a financial agreement in place.
How do we make our financial agreement legally binding?
To make the agreement legally binding, you need to include the terms of the financial agreement into a formal legal document called a Consent Order. The Consent Order is then sent to the Court dealing with the divorce or dissolution. Once the Consent Order is reviewed and approved by a Judge, the agreement will become legally binding and enforceable in law.
A Judge will only approve a financial agreement if they consider it fair. If the Judge finds the agreement unfair, they may request changes or further explanations.