In order to get divorced you must be legally married. Some foreign or religions marriage ceremonies are not recognised by the law of England and Wales.
You cannot apply for a divorce until you have been married for one year.
Depending on which country(ies) your spouse and you live or have lived in, you may wish us to advise you on whether there are alternative jurisdictions where you could apply for a divorce. International Divorce/ Choosing the right jurisdiction.
The mechanics of obtaining a divorce are usually quite straightforward, particularly if you both agree that the marriage or civil partnership over. The difficulties tend to arise when resolving the practical issues, such as the manner and timing of the physical separation and the arrangements for children and finances.
There is a myth that we have "no fault" divorce in England. Unless you have been separated for at least two years, fault has to feature in a divorce petition. The only way to start divorce proceedings immediately is to base your petition on one of the two fault-based facts detailed below, either adultery or behaviour.
Another myth is the "quickie" divorce. Even an agreed petition can take up to 6 months to be processed by the Court applying for Decree Absolute (the final order of divorce) is often delayed until after all financial issues have been resolved. We will guide you through the process, timescales and costs involved. The only ground for divorce in England and Wales is that "the marriage has broken down irretrievably." When applying for a divorce, you must "prove" this irretrievable breakdown with evidence of one of the five following facts:
- Adultery: Your husband/wife has committed adultery with another woman/man and you find it intolerable to live with him/her.Adultery is sexual intercourse between a married person and a person of the opposite sex who is not their husband/wife. It cannot be relied upon in same sex relationships.If your partner admits to committing adultery and consents to the divorce proceeding on this fact, then the divorce should succeed. If they do not admit to committing adultery you will have to provide the Court with evidence to prove that he had sexual intercourse with another woman/man.It is also necessary to prove that it is intolerable to live with your partner but this does not have to be as a consequence of the adultery and can be as a result of some other behaviour.If you continue to live with your partner for 6 months after you found out about his or her adultery, then you will not be able to apply for a divorce on the basis of that incident of adultery.
You may name the person who committed adultery with your partner in the divorce petition, but if you do this, you will have to serve the divorce papers on her as well as your spouse and this will cause further expense and delay if she or he does not co-operate.
- Unreasonable behaviour: Your partner has behaved in such a way that you cannot reasonably be expected to live with him.Unreasonable behaviour can include a wide range of behaviour from serious incidents of domestic violence to refusing to help with household chores. Generally, you will need to set out details of 4 or 5 examples of your partner's behaviour. It is helpful, but not essential, to include the first, the worst and the most recent incident of his unreasonable behaviour during the marriage.It is the effect of your partner's behaviour on you, that is relevant when relying on this ground.If you continue to live with your partner as a couple for 6 months after the last incident of his unreasonable behaviour, you may not satisfy the court that you cannot reasonably be expected to live with them.
- Desertion: Your partner has deserted you for at least two years before you apply for your divorce.It can be difficult to prove your partner has deserted you unless they have left you, you do not know why and you do not know where they are.
- 2 Years separation with consent: You and your partner have been separated for a continuous period of two years and both of you agree to the divorce.To prove this you do not necessarily have to have lived in separate homes but you do have to have lived separate lives, for example, eating and doing domestic chores separately.
- 5 Years separation: You and your partner have been separated for a continuous period of five years.Your partner can oppose a divorce on this ground if they can argue that ending a marriage would result in grave financial or other hardship to them and it would be wrong in all the circumstances to end the marriage.
First you must complete a divorce petition. This is a legal document sometimes called a Form D8, which will set out details of your marriage including when and where you were married and details of the particular fact (see above) that you are relying on to prove your marriage has broken down irretrievably. This is available from your local County Court or can be downloaded from https://hmctsformfinder.justice.gov.uk/HMCTS/FormFinder.do
At the end of the divorce petition there is an opportunity to indicate whether you are intending to make a financial claim against your partner. This is sometimes referred to as the 'prayer'. It is advisable to indicate all financial claims which you might need, as if you do not complete this correctly and later want to make certain claims, you may be prevented from doing so. The Court will not make any financial orders in respect of your divorce proceedings. If you are intending to make a financial claim you will need to make a separate application to the Court.
Once the forms are completed you can commence the divorce process by "issuing the petition". Issuing is a legal term and means that the divorce petition (D8) must be taken or sent to the court together with an original or certified copy of your marriage certificate. If you cannot find your marriage certificate, you can apply for a copy from the Registry Office in the district where you were married or from the General Register Office. If your marriage certificate is in another language you will need to arrange to have it translated and the translation certified by a notary public.
If you apply for the divorce you are the "Petitioner" and your partner will be the "Respondent".
Once the divorce petition has been issued it will be sent to your partner by the Court. This is called "service" of the divorce papers. The Court will usually serve the petition by sending it by first class post to the address you have given for your partner in the petition. If postal service is unsuccessful then you can request that a Court Official serve the documents on your partner personally for a fee. You are not allowed to serve the papers yourself.
So the court can be satisfied that your partner has received the divorce papers they will be asked by the court to sign and return an Acknowledgement of Service form. This must normally reach the court within eight days, starting on the day after they receives the divorce papers, although time limits will be longer if your partner is being served outside England and Wales. The Acknowledgement of Service form allows your partner to say whether or not they agree with the contents of the divorce papers and whether they wish to defend the divorce or contest the arrangements proposed for your children. Defended divorces are rare, as the presentation of a divorce petition is often an indication that the marriage has broken down and consenting to the divorce will not normally affect rights in respect to the finances or the children. A defended divorce can also cost a lot of money, as a contested court hearing will normally be listed, which you may have to attend.
If your partner has told you that they have received the divorce papers but they refuse to complete the Acknowledgement of Service form you can apply to the court to make an order of deemed service. You must prove to the court that your partner has received the divorce papers. If the court is satisfied that your husband has received the papers, it can make an order that your partner was served on a particular date.
The court needs your partners address in order to serve the divorce papers on him or her. So if you have lost contact with your partner and do not know where they live or work you may be able to use an alternative method of service.
Before requesting an alternative method of service from the court, it is important that you have made every effort to find out where your partner lives from their family, friends, employer and anyone else who knows they. If they still cannot be traced you can apply to the court for substituted service. This means that an alternative means of sending the documents can be used, for example an advertisement in a paper that it is known that your husband reads regularly, or for documents to be left at a different address, for example with a relative.
If, in spite of trying the above, if your partner cannot be traced, you can apply to a district judge for an order dispensing with service. If the judge is satisfied that sufficient searches have been carried out and that your partner cannot be found, the judge can make an order that the divorce can proceed without the divorce papers being served on them.
If your husband is not defending the divorce the court will then ask you to confirm the details set out in your divorce petition are true. You do this by filling in and swearing an "affidavit" in front of a solicitor and signing an Application for Directions for Trial.
The judge will then consider whether you are entitled to a divorce. You do not have to attend court for a hearing. The Judge simply looks at the paperwork. If the judge is satisfied you are entitled to a divorce, then the Court will send you a Certificate of Entitlement to Decree Nisi.
This will give a date and time at which your Decree Nisi will be pronounced at court. Decree Nisi is the preliminary stage of the divorce and does not dissolve the marriage itself. It means the grounds for divorce have been proved. Again you do not have to attend court for this hearing although you can if you want to.
Six weeks and one day from the date of your Decree Nisi, you can apply for your Decree Absolute. You will need to complete and sign an Application for Decree Nisi to be made Absolute . If you do not apply for Decree Absolute for three months after you got your Decree Nisi your husband can apply for it.
It is only when Decree Absolute has been granted that your marriage is formally ended and you and your husband are free to marry again if you wish.
How long will it take?
Even the most straightforward divorce takes between 4 and 6 months and it is often advisable to postpone applying for Decree Absolute until any financial proceedings have concluded as it can affect your rights to live in the family home, to financial recovery, or to deal with your joint finances. If there are difficulties serving your partner with the divorce papers or if your partner contests the divorce it could take longer.
The law in England and Wales which recognizes divorce is civil law. This means that other forms of personal or religious divorce law such as Islamic law or Jewish law are not legally recognised.
For a divorce to be valid in England and Wales, it must be issued in a civil court according to the procedure which has been outlined above.
Religious divorces which take place in England and Wales are not recognised by law. You will therefore need to apply for a divorce in addition to a religious divorce.
What happens if I get divorced in another country?
An overseas divorce is a divorce which is obtained in a country outside the UK.
Divorces which take place overseas are not automatically legally recognised in England and Wales. This means that a divorce can be valid in the country where it took place, but it will not necessarily be recognised in England and Wales. As a consequence, you may still be married and any subsequent marriage, before being granted a legally recognised divorce, would be void (see below) and bigamous. Bigamy is a civil and criminal offence. The rules recognising overseas divorces are complex and vary depending on which country your divorce took place in. We are happy to provide you with specialist advise in respect of this.
Can my partner ask me to leave our home or can I ask them to leave?
A person has a right to occupy (live in) a property if they own it (their name is on the title deeds to the property), they have a financial interest in it (because they have made financial contributions) or because it is their matrimonial home. This means that even if your partner owns the property in his sole name you have the right to live there until your marriage ends. This is called Matrimonial Home Rights. The only way that a person can be forced to leave the property if they do not want to is if the court suspends their right to occupy it with an Occupation order.
This means that your partner cannot ask you to leave your home, exclude you from it or change the locks without your agreement. If your partner does any of these things may be able to apply for an occupation order to enable you to return to the property. If your partner is violent or abusive to you, you can make an application to the court for an Occupation Order or, if the police or courts are involved, your partner may be given bail conditions which temporarily prevent them from returning