Getting divorced in England and Wales
Divorce is the ending of a legal marriage. This article covers the legal process in England and Wales, as well as considerations of finance and childcare.
- What is divorce law?
- Alternatives to divorce
- Choosing a divorce lawyer
- The divorce process
- Finances and children
1. What is divorce law?
Ending a legal marriage under the law of England and Wales is known as a divorce. As society’s values have evolved, so too has the framework by which married people can legally dissolve their marriage before separating their assets.
To apply for a divorce in England and Wales, you must have been married for at least a year. The marriage must have been legally recognised in the UK for this period, so registered with the state as well as any religious organisation. One or both spouses must also be permanent residents in the UK. If you have been married for less than a year, you should seek an annulment instead.
In order for a divorce to be granted, the applicant must show evidence that the marriage has broken down beyond repair. One of five reasons, or ‘facts’ supporting this claim must be shown. These are:
Your spouse has engaged in sexual intercourse with someone else of the opposite sex.
Note that being unfaithful with someone of the same sex or engaging in sexual activity other than intercourse would not come under this definition where divorce law is concerned. In addition, this cannot be given as a reason if you discovered adultery and still lived together as a couple for longer than six months.
Also, you cannot use your own adultery as a reason for divorce.
Your spouse’s behaviour is no longer reasonable enough to expect you to live with him/her.
This is somewhat broader in scope, without strict definitions. However, divorce law precedent includes, but is not limited to, incidences of physical violence or other domestic abuse or coercion, unreasonable sexual behaviour, substance abuse, or a spouse not contributing to the couple’s financial obligations.
For same sex couples, unfaithfulness with a member of the same sex (not covered by adultery) could be included here, as would any intimate extra-marital relationship that does not include intercourse (all couples).
Separation for at least two years
This can be either with or without consent.
Often the case is the former, where married couples show that they have lived separately for at least two years. This can still be done if living in the same household, so long as it can be shown that you were leading ‘separate lives’, not as a couple.
The other aspect here arises in cases of desertion. If one spouse leaves another for a period of more than two years, without consent or good reason, there will be grounds to show that the marriage has broken down beyond repair without the need for both parties to agree.
Separation for at least five years
If a married couple has been living separately for at least five years, either party may issue divorce proceedings without the other’s consent.
2. Alternatives to divorce.
No two marriages are equal, and in many cases it may be possible to seek alternative courses of action when faced with a matrimonial breakdown. This is particularly important in situations where children are concerned.
In deciding whether the marriage really is irrevocably damaged, it may be wise to seek out mediation. This allows for an independent arbitrator to take into account the concerns of both parties and advise on how best to remedy the issues bringing strain to the marriage. This can be done alongside a temporary separation, which as mentioned above, divorce law provides for without risking the marriage, so long as it is less than two years.
If a permanent separation is still ultimately sought, a mediator can assist the parties in settling on matters of childcare, financial maintenance and division of assets, amongst others. This is known as a separation agreement. While this can be done relatively easily, it does not equate to a legal divorce, meaning there can be no court order for disclosure of assets (should one party be hiding wealth), nor will it be as easy to enforce if one party does not uphold its end of the deal.
Ultimately however, because of the impact that marriage has on other legal aspects of life, taxation, inheritance and residency for example, should you wish to move on and share these benefits with someone else, consulting a solicitor with a view to getting a divorce is advisable. Without one, you would be unable to remarry, and your assets may not be fully protected from your former partner.
3. Choosing a divorce lawyer.
Often this can depend on how amicable proceedings are likely to be, as this will affect the amount of time, effort and expense required to finalise the divorce. Many ‘high street’ solicitor firms will offer family law as part of their general practice, and if matters are not as complicated then it may be more cost effective for both parties to take this route when choosing their legal representatives.
However, for more contentious divorces, including those involving high networth individuals or international parties, a divorce law specialist is recommended. This is especially important when one party does not consent to the divorce, is hiding assets, or even if there is a prenuptial agreement in force, as aspects of these may be set aside in certain circumstances, especially regarding children.
Regardless of how you find one, your solicitor should explain your options to you regarding divorce law, clarifying in layman’s terms and ensuring that you understand the situation fully and comprehensively from the start.
4. The divorce process.
Once you are sure that you want a divorce, the first step is to issue the divorce petition (Form D8). Your solicitor will assist with this, and you must include the full name and address of your spouse, a copy of your marriage certificate and a court fee of £550.
The court will then send the application to your spouse, as well as an ‘acknowledgement of service’ form, with which your spouse will have eight days to respond, either consenting to the divorce, providing a defence in order to prevent the divorce, or proposing a challenge to the paying of the costs, if claimed.
Again, the length of this process depends on the level of amiability and agreement on dividing assets and childcare between the divorcing couple. If consent is given, or no defence provided in time, then the next step is to apply for a decree nisi (Form D84). This involves a statement of truth, attesting that you have not lied about anything in your divorce petition as well as a statement form that highlights the reason for divorce (of the five listed above).
Should no issues be found by the judge, the courts will issue a certificate to both parties setting a date for the decree nisi. This does not finalise the divorce, and you will have to wait another 43 days after this set date before applying for a decree absolute, which will end the marriage (Form D36).
If the other party (the respondent) decides to defend the divorce petition, the respondent has 28 days from receiving it to respond with an ‘answer to divorce’ form (Form D8B), indicating a basis for disagreeing with the divorce, if applicable. The respondent may also start his/her own divorce proceedings against the other spouse as discussed above. It may be more advisable to take the latter course of action even in the belief that the reason given for the divorce is unjustified, as defending oneself from a spouse’s claims can be quite expensive, without actually having much impact on the result of proceedings.
This is where matters can begin to complicate, when respondents do not give consent to the divorce, or they simply refuse to acknowledge that they have received the papers. In some cases, they may have genuinely not received them, meaning it is always wise to follow up, double check where they are living, or consider arranging personal service from a court bailiff (which will suffice as proof of receipt). Alternatively, the courts may conclude receipt of the papers without a response if other evidence can be provided that the papers were indeed delivered properly (for example correspondence between the relevant parties indicating such).
All in all, there really is no set time frame in which all aspects of a divorce will be concluded. In situations where things are more straightforward and agreed upon by the couple, the average time is between four and six months. It has been known for divorces requiring a court settlement to last for much longer, with a recent case concluding 16 years after the granting of the decree absolute.
5. Finances and children.
Obtaining a decree absolute does not necessarily mean that matters are finalised when it comes to the shared life of the couple. Divorce settlements that usually take longer to complete are almost always ones involving disputes over finances or childcare. This can be further complicated by the fact that emotions can run high where both are concerned. It is crucial that you consult closely with your divorce solicitor here, whether you are in the process of negotiating a divorce settlement or preparing to involve the courts.
There is no set framework for drafting a settlement, and parties may agree on the division of assets, such as property, investments or cash, as well as any spousal maintenance as they see fit. The same can be said of childcare, although it is important that the welfare of any children be paramount in a divorce, so child maintenance should be considered. Any agreement reached amicably should still be approved by the courts via a consent order for it to be legally binding going forward.
It may well be the case, however, that an agreement cannot be reached between the divorcing parties, even with mediation. If a financial settlement is not reached, then the couple could be bound to each other for future financial obligations, making moving on rather difficult for both sides. In order to prevent this, a consent order is still needed, so it is better to apply to have the court step in to put together a financial settlement.
You must show that you have tried mediation (other than in cases of domestic abuse and social services involvement) before applying to the court. The situation will then be assessed by a judge who will then rule on the division of the assets accrued during the course of the marriage, otherwise known as the matrimonial assets. These can include property, cash, pensions, vehicles and businesses, amongst others.
How this is all divided in the divorce depends on a variety of factors that the judge will consider. Aspects such as the length of the marriage, the value of assets, the earning ability and standard of living of both spouses and who provided what, both in terms of income and childcare are analysed before a decision will be reached and a settlement produced. The goal of the court is to ensure the fairest outcome for both parties and to prioritise the wellbeing of any children they have. This means that there is not always a 50/50 split in every divorce.
When it comes to any children involved, it must be decided who is to be the major caregiver, formerly known as having custody. In recent years, the term ‘child arrangements’ has replaced this. In addition, the amount of time a parent spends with their children after a divorce, if they don’t live with them, needs to be agreed upon. This is referred to as access.
These situations can become especially complex when you consider that there may even be third parties, such as grandparents or step-parents, involved. It is key to ensure that you have a family law specialist at hand when embroiled in any sort of custody dispute, especially when applying to the court.
The court will always rule with the child’s best interests at heart, taking into account factors such as the child’s age, gender, any needs the child might have, risk of harm, what the child is used to and how a change of circumstances may impact him/her. The wishes of the child will also be considered.
When the court decides how to proceed with childcare and arrangements for access, it will issue what is known as a child arrangements order. This will primarily determine who the children will live with (the resident parent) and how much if any, access will be granted to the non-resident parent. This will usually remain until a child turns 18.
While the process of obtaining a divorce may seem to be straightforward, when couples do not agree on everything, it is rarely the case. So many factors can come into play, meaning that it is essential to consult a divorce or family solicitor as soon as possible when faced with divorce proceedings.
The need to provide a reason that the marriage has broken down beyond repair means that – under current divorce law – consent from both parties, an admission to adultery, or a period of separation is required. This will no longer be the case from 6th April 2022 following the passing of legislation in 2020.
Under the new divorce law, all that will be required is for one or both people in the marriage to state that the marriage has irretrievably broken down. This will serve to make the initial stages of obtaining a divorce easier, but considerations regarding finances and childcare will still have just as much importance throughout the involved divorce process.