Introduction
The procedure to dissolve a
marriage are known as divorce proceedings and these
are separate from ancillary
relief proceedings that are concerned only with
resolving the financial matters. It is not possible to start divorce proceedings
if married for less than one year although nullity
or judicial
separation could apply in this case.
Assuming
the individual applying for a divorce in the UK does so after one year, can satisfy
the conditions for residence and has grounds
for a divorce then it is possible to start
proceedings by completing a petition form
and submitting this to any divorce county
court or the Principal Registry in London.
If the individual is not sure if they have
grounds for divorce, their spouse will not
agree to a divorce, there are children of
the marriage or complex property and assets,
then it may be necessary to seek professional
advice from a family lawyer. During
ancillary relief proceedings different orders
can be applied to the matrimonial
home by the court depending on the circumstances
of the parties.
The following provides
extracts from the Family Proceedings Rules
regulations which are produced by and subject
to Crown Copyright and from the Court Service,
showing the step-by-step process an individual
must follow when making an application for
divorce proceedings. For
more information the Court Service website
can be accessed from the official
sites links page.
Your residence and divorce
Step 1
There are a number of conditions that must be satisfied
regarding an individuals residence, or their husband's
or wife's residence before it is possible to apply
for a divorce petition in England and Wales.
The following is a list of the main residence options,
although there may be other circumstances that allow
a divorce to take place and advice from a family
lawyer should be sought:
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You and your husband
or wife, must both have your permanent homes
(known as domicile) in England and Wales when
the divorce petition is started; or |
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You and your husband
or wife must both be living in England and
Wales when the divorce petition is started; or |
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You and your husband
or wife must both have had your last home
in England and Wales and one of you must still
be living in either of these countries when
the petition is stated; or |
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Your husband or wife must be
living in England or Wales when the divorce
petition is started; or |
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You must have been living in
England and Wales for at least a year on the
day the divorce petition is started; or |
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You must have your permanent
home in England or Wales and have been living
in either of these countries for at least
six months on the day the divorce petition
is started. |
After one year of marriage
Step 2
Either spouse can apply for a divorce petition and this person is known as the petitioner.
To do this Form D8 (divorce petition) and Form D8A
(statement of arrangements for the children) if
applicable, must be sent to the court together with
the marriage certificate. The court fee for issuing
the divorce is £150.
Grounds for divorce
Step 3
For the petitioner to be successful, he or she must
show that the marriage has irretrievably broken
down by establishing one of the following five facts
as proof:
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Adultery of the other spouse; |
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Unreasonable behaviour of the
other spouse; |
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Desertion by the other spouse
after two years; |
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Separation with consent after
two years; |
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Separation without consent
after five years. |
Step 4
After a few days of the court receiving the
petition, it will send the petitioner Form D9H (notice
of issue of petition) confirming receipt of the
petition and also when this was sent to the respondent.
The court sends a copy of the petition and statement
of arrangements to the other spouse, known as the
respondent.
If the respondent has instructed a family lawyer
to act on his or her behalf, then these documents
will be sent to them. Where the reason for the divorce
is adultery, a copy of the petition must be sent
to this person. This person is known as the co-respondent,
however, their name does not have to appear on the
petition.
Respondent requirements
Step 5
Within 8 days (including the day of receipt)
of the petition and statement of arrangements from
the court, the respondent must send to the court
Form D10 (acknowledgement of service). The respondent
must state on the form if he or she intends to defend
the petition, if there are any claims for costs
are disputed and if there is agreement between the
parties regarding the arrangements for the children.
Step 6
If the respondent intends to defend the divorce,
within 29 days (including the day of receipt)
of the petition and statement of arrangements
from the Court, he or she must send to the Court
a defence known as an 'Answer'. A defended divorce
leading to a final contested hearing is unusual
as the majority of parties reach an agreement
during divorce proceedings. A defended divorce
leading to a final hearing is also very expensive
and public and can be reported through the press.
Step 7
If you know the respondent intends to defend the
case but does not respond within 29 days, you
can apply for directions for trial. The petitioner
must complete Form D84 (application for directions
for trial) and Form D80 (affidavit of evidence)
which are provided free from a court office. There
are different versions of Form D80 for each of
the five grounds for divorce.
Respondent fails to
respond
Step 8
If the respondent or any co-respondent fails to
return Form D10 (acknowledgement of service) to
the court, then 8 days after the petition was
sent the petitioner must get 2 copies from the
court of Form D89 (request for bailiff service).
With this form the petitioner must also send a
photograph or a written description of the respondent
or co-respondent together with a fee for each
person being served.
Apply for a decree
nisi
Step 9
If the divorce is not defended, then a
few days after receiving the Form 10 (acknowledgement
of service), the petitioner can apply to the Court
for the decree
nisi. The petitioner must provide a sworn
affidavit in Form D80 to confirm that the contents
of the Form D10 (acknowledgement of service) are
correct. This includes the following:
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that the respondent and any
co-respondent has received the divorce petition; |
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that the respondent and any
co-respondent have admitted to committing
adultery if this was the grounds for divorce; |
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that the respondent consents
to a divorce if the grounds for divorce were
that you have been separated for and living
apart for two years; |
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that the respondent has agreed
with the arrangements for the children. |
The petitioner must swear the affidavit before
an officer of the county court or the Principal
Registry or a solicitor and then send this together
with the decree nisi to the court.
Step 10
Once the court receives the application
for the degree nisi, a Judge will review the paperwork
to ensure that it is in order. If this is so the
court will send both the petitioner and the respondent
Form D84A (certificate of entitlement to a decree)
informing of the time and date the Judge will
grant a decree
nisi. If there are no children, Form D84B
(notice of satisfaction with the arrangements
for the children) will also be sent with Form
D84A confirming that there are no children.
The court then makes an appointment for the pronouncement,
this being about 5 weeks after sending the application
for a decree nisi to the court. It is not a requirement
that the parties be present when the decree nisi
is pronounced and the court will send to the petitioner,
respondent and co-respondent Form D29 (decree
nisi).
Apply for a decree
absolute
Step 11
When the decree nisi is granted, 6 weeks
and 1 day later the petitioner can apply for the
final decree called the decree
absolute and submit Form D36 (notice of application
for decree nisi to be made absolute) at a cost
of £30. This is processed within a few days
and the Court can then grant the decree absolute
making the divorce final. The court will sent
to the petitioner and respondent Form D37 (decree
absolute).
Step 12
If the petitioner does not applied for
a decree absolute, then the respondent can apply
3 months after the date the petitioner could have
applied for the decree absolute. This is 4½
months and 1 day after the decree nisi is granted
and the cost is £30. The petitioner can
prevent the respondent from doing this if the
petitioner can show that by doing so would create
financial difficulties, where a final financial
order for ancillary
relief has not been granted.
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