My spouse and I have separated, what is the process for getting a divorce?
Firstly, you need to be able to demonstrate that your marriage has ‘broken down irretrievably’. Currently, there are five grounds upon which this can be established: adultery, behaviour of your spouse, desertion, separation for two years (where both parties agree) or separation for five years (the law on this is changing, see our blogpost on the topic here for an explanation of the changes that will come into force).
Secondly, the ‘petitioner’ lodges a petition seeking a divorce. To lodge a petition you will need your original marriage certificate, so you should find that as soon as possible to avoid delay or get a copy from the Register. Once lodged, the documents will be sent to the respondent (being the other spouse). They will need to return an acknowledgement of service, which confirms that they have received the documents. At this stage, the respondent can say whether they intend on defending the divorce.
If the divorce is not contested, the petitioner will swear an affidavit swearing that all of the details in the documents are true. After this, a judge will review the paperwork and consider whether he/she is satisfied that the marriage has broken down irretrievably. The judge will then set a date for when a ‘decree nisi’ will be given. This is essentially a conditional order. The final step is that the petitioner can apply for a decree absolute six weeks after the decree nisi is given. Once this is done, you are divorced.
My spouse doesn’t want a divorce – can they refuse a divorce?
As the law stands, unless you have been separated for five years then yes, theoretically your spouse can refuse to agree to a divorce. If you apply on the basis of adultery, behaviour, or desertion, your spouse might deny what you have claimed. It is extremely rare for the court to refuse divorce where there is evidence of even moderate unreasonable behaviour, but it can still happen (see the decision of the Supreme Court in Owens v Owens  UKSC 41). If you have separated for two years you still need the agreement of your spouse, and if they do not agree then the court cannot grant the divorce. As mentioned above, a new law has been passed, allowing for a faster divorce process without having to attribute fault, but this is unlikely to be come into effect until next year (see our blog here).
How much the divorce process cost?
Under the current law, the cost of a divorce is dependent on a number of factors. Firstly, the cost of divorce process itself will depend on whether the divorce is contested. The current court fee for applying for a divorce is £550, plus you will be required to pay your solicitors’ fees. The amount of legal fees should not be disproportionately high in an uncontested divorce.
Other costs will depend on circumstances. There will be further fees if there are children of the marriage and you need assistance in making formal arrangements in respect of custody (or there is likely to be a dispute over this issue). Further, if you and your ex have matrimonial property, it is recommended that you seek legal assistance in a financial separation as well as the divorce – and take advice before instigating divorce proceedings. Although it can feel daunting to seek legal help, and this does cost money, it is our experience that good advice now saves far more time, stress and money than waiting for a dispute over property to arise. Our experienced and approachable family law team will be sympathetic to your plight and will be able to support you through what can be a difficult emotional process. We recommend that you contact them as early as possible to arrange a consultation. They will be able to provide a cost estimate tailored to your specific circumstances.
Do I have to reach a financial settlement before I can get a divorce?
The short answer is no, but we would recommend trying to resolve financial matters in conjunction with your divorce proceedings. Once a divorce is finalised it can impact certain entitlements, such as pension rights. It is also advisable to have matters resolved prior to either party getting into a new relationship, as this can muddy the waters, and can sometimes increase animosity. We recommend reading our Financial Settlement on Divorce FAQs page here.
Do I need to instruct a lawyer to get a divorce?
We would strongly recommend using a lawyer to assist, particularly where there are matrimonial assets and/or children of the marriage. Of course, you and your spouse may deal with the matter amicably, in which case you may wish to negotiate everything between yourselves, but we would still recommend each of you seeking legal advice in order for matters to be formalised. This protects both of you, and ensures that the arrangements you have in place can be enforced if need be.
I’m about to get a divorce, can I transfer my property to a friend or family member to protect it?
The short answer is no – any transfer of property can be traced and the court can force the property to be transferred back. If the matter goes to court you will be viewed unfavourably if you try to deprive your spouse of property they have an entitlement to. We would recommend seeking legal advice to see how you can protect your position and not undermine your own position.
Do I have to go to court to get a divorce?
If you are able to reach agreement with your spouse, then you should be able to get a divorce without having to attend court in person. However, you will need to file documents with the court, including the original marriage certificate and petition. If you appoint solicitors they will be able to take care of that for you.
We got married in another country, can I still get divorced in the UK?
You can get divorced in the UK if at least one of you has been habitually resident in England for the year leading up to the date when you file for divorce, or if one or both of you are ‘domiciled’ in England, even if you are not resident here.
If you are a foreign national, you should be aware that you will likely be able to apply for divorce in another country – such as your home country. If either of you has strong ties to another jurisdiction, you should seek early advice as there are different rules, procedures, advantages and disadvantages depending on where you apply for a divorce.
To arrange a preliminary consultation with our family law and divorce solicitors, or to find out how we can support you, please send us an email, complete our online enquiry form or call us on 020 3811 1643.