There are certain steps involved with getting a divorce, which can be confusing if you’re unfamiliar with the process. Here’s a guide to how to get a divorce, broken down into a series of helpful steps.
Getting a Divorce – Are You Eligible?
Firstly, it’s important to ascertain whether you’re eligible for a divorce or not. To legally get divorced from your spouse, you must:
- Have been married for at least a year.
- Have a permanent home in England or Wales.
- Have a marriage that is legally recognisable in this country (this includes same-sex marriage).
Note, the divorce process is different if you live in Scotland or Northern Ireland.
Is it the Right Option?
There are other alternatives to getting a divorce; depending on your situation. For example, it’s possible to get a legal separation, where you’re able to live apart while remaining married. You can also have the marriage annulled (if you can prove that the marriage was ‘void’ – for example, one of you was already married, or under the legal age).
Things to Note Before You Start the Divorce Process
With your partner, you’ll need to identify one of five reasons why you want a divorce. This is termed as finding ‘grounds for divorce’.
Here’s a brief run-through of the main reasons:
Adultery must be sexual in nature. At present, the law also stipulates that it must be with a member of the opposite sex. It doesn’t matter if the adultery took place years ago or recently – as long as you have proof or your spouse admits to it.
For adultery to be considered legitimate grounds for divorce, the following must apply:
- You must have applied for divorce within six months of finding out about the adulterous behaviour.
- You must be able to prove that you have not been living together for longer than six months after discovering the adulterous behaviour.
- You will need actual proof. Hearsay isn’t enough.
Adultery is a complex reason for getting a divorce, and as such, it’s recommended that you seek legal advice from a specialist divorce solicitor.
If your spouse left home two years (or more) ago, with the intention of ending the relationship with you, this counts as desertion, and is recognised grounds for divorce.
However, you’ll need to prove that they left without providing an adequate reason, and obtaining evidence can be tricky.
- Unreasonable behaviour
This umbrella term covers a wide range of behaviours; such as violence, criminal activity or anti-social behaviour; or even if you believe your spouse is acting inappropriately with members of the opposite sex.
As such, it’s one of the most commonly used grounds for divorce. However, it’s important to note that simply falling out of love does not constitute unreasonable behaviour. You need to provide specific reasons as to why you think they’re behaving in a problematic or upsetting manner.
- You’ve lived apart for two years (and both want a divorce)
Both you and your partner need to agree (in writing) that you’ve been living separate lives for two years or more. This doesn’t necessarily mean that you had to be occupying different houses it just means the arrangements for how you have lived must be clear.
If you’re still living in the same house, you’ll need to prove that you’re not sharing anything; a bed, food, bank accounts, certain possessions.
- You’ve lived apart for five years (but your spouse doesn’t want a divorce)
Once you’ve lived a separate life from your spouse for five years, you’re legally permitted to apply for divorce without their agreement. In this instance, it’s unlikely that you’ll need to take the matter to court, but you’ll probably still benefit from legal assistance.
What Happens if You and Your Spouse Don’t Agree?
Occasionally, both parties struggle to come to an agreement on the terms of the divorce; for example, the grounds for the divorce, or financial-related issues (such as who should pay the fee).
In this instance, it’s a good idea to work with a divorce solicitor, who can help you to identify which of the five ‘facts’ are most suitable grounds for divorce, and what evidence you’ll require. There are several advantages to hiring a solicitor:
- They’ll talk to your spouse / your spouse’s solicitor, so you don’t have to.
- They’ve got in-depth knowledge of the process, which makes it less stressful.
- They’ll be able to present you with a full range of options.
- They’ll represent you in court.
What You Need to Do to Start the Divorce Proceedings
During the process, you’re likely to need a variety of documents for evidence, such as proof of earnings. One document you’ll need is your marriage certificate. This is a mandatory requirement, as you’ll have to file it at court when you start petitioning for a divorce.
If you’ve lost your marriage certificate, don’t panic. It’s easy to obtain a copy from the General Register Office, unless you got married outside of England and Wales, in which case you’ll need to obtain a copy from the country in which you were wed.
Filing for Divorce
You can start divorce proceedings using one of the regional divorce centres. Usually, a solicitor will help with this, but there is the option to do it yourself. You’ll need to obtain Form D8 (The Divorce Petition), complete it, then send it off.
You need to choose the divorce centre that is closest to where you live. Note, you’ll need to pay a fee of £550 to apply for a divorce.
What Happens Then?
Your divorce application is checked, then if everything is in order, you’ll receive notice that your application has been sent out. You’ll also receive a copy of your application (stamped) and a case number.
Your spouse will receive a copy of the application too, and an ‘acknowledgement of service’ form. This form asks your spouse the following:
- If they intend to protest the divorce.
- If they’re happy with paying the costs.
They have seven days to respond.
Applying for a Decree Nisi
The Decree Nisi is a provisional order, which identifies that the grounds for divorce have been established and the process can commence.
To apply for it, you’ll need to complete the following:
- Form D84 – An Application for a Decree Nisi
- Form D80A – D80E – A Statement in Support of Divorce / Dissolution / Judicial Separation
These need to be sent to the court, to alert them that your divorce is undefended. The forms will then be read through, and a decision will be made about whether you have proper grounds for divorce. Proposed arrangements for children will also be reviewed.
Once approved, the Decree Nisi will be sent to you and your spouse. This usually takes around two months.
Getting a Decree Absolute
The Decree Absolute is the document that makes your divorce official. If you were the one who first petitioned for the divorce, you can apply for the Decree Absolute six weeks and a day after your Decree Nisi has been agreed. You can do this by completing Form D36 – A Notice of Application for Decree Nisi to be made Absolute.
If you’re the respondent (i.e. it was your spouse who started divorce proceedings), you’ll have to wait four and a half months to apply for the Decree Absolute after the Decree Nisi has been granted.
It’s strongly advised that you seek legal assistance throughout the divorce process; regardless of how straightforward your case may appear. A divorce solicitor will be on hand to assist with every aspect of your case; from completing the relevant forms to negotiating for a better deal.
At Lloyd Platt & Co we are an experienced firm of solicitors specialising in these tasks and are able to guide you through each step of the process.