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What do you need to do to obtain a divorce?

To file for a divorce within England and Wales as it currently stands,  requires one of the parties to establish one of the five “grounds” for divorce.

On 6 April 2022 the Divorce, Dissolution and Separation Act 2020 will reform the divorce process to remove the concept of “fault” so that the parties no longer have to show wrongdoing by one of them to allow the dissolution of the marriage.

If you agree on your divorce and the reasons why, getting a divorce legally finalised will usually take 4 to 6 months. It might take longer if you need to sort out issues with money, property or children, which will have to be done separately.

Before you apply

You should try to agree your reason for your divorce with your ex-partner. If you are using behavioural grounds a copy of the reasons should be provided to your spouse before issuing in order to keep matters as amicable as possible.

In preparing to file for divorce it is important to bear in mind the following:

1.Check you can get a divorce

You can get divorced in England or Wales if all of the following are true:

  • You have been married for over a year
  • Your relationship has permanently broken down evidenced by one of the five “grounds.”
  • Your marriage is legally recognised in the UK
  • the UK is your permanent home, or the permanent home of your husband or wife

2.Apply for a Divorce

To apply for a divorce, you will need:

  • your husband or wife’s address
  • your original marriage certificate or a certified copy
  • proof of your name changes if you’ve changed it since you got married – for example your marriage certificate or a deed poll

The court will need it to send them a copy of the divorce petition to your spouse – hence the need for their address or e-mail.

3.What happens after you apply?

Your application will be checked. If it is correct, you will be sent:

  • a notice that your petition has been issued/ sent to your spouse
  • a case number

4.Your Husband or Wife replies

The acknowledgement of service form asks your husband or wife if they:

  • agree with the divorce
  • intend to try to prevent the divorce (defend it)
  • object to paying the costs (if you’ve claimed them)

Your husband or wife must respond within 8 days of receipt of the petition.

5.What happens if they agree or disagree with the divorce?

If they agree with the divorce

You can continue with the divorce by applying for a Decree Nisi.

If they defend the divorce

Your husband or wife will have to complete an ‘answer to divorce’ form to say why they disagree with the divorce. They must do this within 28 days of getting the divorce application.

If they do not submit an ‘answer to divorce’ form, you can continue the divorce by applying for a Decree Nisi

If they do submit an answer to divorce in time, you may have to go to court to deal with the case.

6.Applying for a Decree Nisi

A decree nisi is a document that says that the court does not see any reason why you cannot divorce. The application involves a signed statement stating your petition is correct.

If your husband or wife does not agree to the divorce, you can still apply for a decree nisi. However, you’ll have to go to a court hearing to discuss the case, where a judge will decide whether to grant you a decree nisi.

Once approved by the judge a decree nisi is issued.

You will still be married after the decree nisi has been granted. You will have to wait 43 days (6 weeks and 1 day) before you can apply for a ‘decree absolute’ to actually end the marriage.

7.The Decree Absolute

Once you apply to the Court for a Decree Absolute the court will check that:

  • time limits have been met
  • there are no other reasons not to grant the divorce

The court will then send you both a decree absolute.

Once you get the decree absolute, you are divorced, no longer married and free to marry again if you wish.

Keep the decree absolute safe – you will need to show it if you remarry or to prove your marital status.

If you do not apply for the decree absolute

Your husband or wife can apply for the decree absolute if you do not. They’ll have to wait an extra 3 months to do this, on top of the standard 43 days.

Points to bear in mind when applying for a divorce:

  • Focus on The Big Picture

No matter how angry or betrayed you might feel it is important to remember the objectives you are hoping to achieve. It is also important to remember that the proceedings are confidential so that the course of your divorce will not be known by the public.

Stay off social media and resist venting details of your divorce. It is also important to resist belittling your spouse to the children or your family (even if he/she is belittling you to them) as this may cause issues later on in Court and in children’s proceedings.

The decisions you will need to make during the divorce process will affect you and your children for years to come, so don’t get bogged down in fighting over semantics or trying to be right.

Nobody wins in divorce, but by focusing on what is most important and what your objectives are from the outset this will not only increase the chance of divorcing amicably, but also in achieving a settlement or contact agreement you can feel comfortable with.

  • Ask a friend or Counsellor for help

Getting a divorce can be both highly emotional and stressful. It is important that you seek support from family members and friends during this time to ensure that you do not feel isolated or overlooked. Seeking help from Counsellors can also be of significant help with emotional issues experienced both before and during the divorce process – Should this be something you are interested in then we can put you in contact with family therapists and counsellors who may be able to help.

  • Develop a good relationship with your solicitor

Whilst we would recommend the use of a specialised family solicitor to help assist you in the divorce process, it is important to ensure that you instruct one you believe can meet your needs. Speak to a solicitor and meet with them first to see if you are able to work with them before instructing them. It is also important to obtain clear costs information from them as to how much they charge and the amount you would be expected to pay during each stage of the divorce process to ensure the costs are able to be met before they are incurred.

For guidance and to file a divorce speak to our divorce team Lesley Smythe and email her at lesley.smythe@dtmlegal.com

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