26 FAQs about divorce and separation.
- How does the divorce process start?
- How does the divorce process work?
- How long does it take to get divorced?
- Does it make any difference who starts the divorce proceedings?
- Does it matter who caused the divorce?
- What do I need to prove to get a divorce?
- How long do I need to have been married before I can get divorced?
- Do we have to try mediation or counselling before applying for a divorce?
- Do I have to use a solicitor to get divorced?
- What information will my solicitor need to help me get divorced?
- Do we have to go to court in person to get divorced?
- What happens if my spouse refuses to get divorced?
- If we change our minds, can we stop the divorce going through?
- How much does it cost to get divorced?
- Can I get legal aid to pay for our divorce lawyers?
- Do we have to agree what will happen to our children before we can divorce?
- Do we have to agree a financial settlement before we can divorce?
- What if my spouse is unreasonable during divorce negotiations?
- What can I do to stop things turning nasty while we are negotiating the divorce?
- How can I make the divorce as difficult and painful as possible for my spouse?
- If I leave the family home during divorce negotiations, can I get back in?
- If I leave the family home during divorce negotiations, will this put me in a weaker position?
- When am I divorced and is there an official record of it?
- Who do I have to notify that I am divorced and what documents will they want to see?
- Which courts deal with divorce?
- We are foreign nationals and got married overseas - can we get divorced in England?
1. How does the divorce process start?
The divorce process can involve up to three separate elements:
- the divorce itself - the ending of the marriage;
- agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable;
- agreement on the arrangements for looking after any dependent children.
Since 6 April 2022, divorce law has changed. Divorce is now on a 'no-fault' basis, to encourage amicable proceedings. The whole divorce process has become much simpler and easier. The legal terms used have also been made simpler.
At the first meeting, your solicitor is required by a code called the Family Law Protocol to consider a number of issues and may need to discuss some of them with you. These include the prospects of reconciliation, possible referral to a family dispute resolution service, whether there is a danger of children being taken abroad, the possibility that there has been abuse, whether there is a need to limit access to joint bank accounts and credit cards, the need to register rights of occupation of the family home at the Land Registry, and many more.
The process of divorce itself starts when the 'applicant' (previously known as the 'petitioner' under the old law) - either you or your spouse, or the two of you jointly - submits a divorce application with the court. The applicant's solicitor normally completes the required documents.
The financial arrangements can be agreed separately at any time - before you start divorce proceedings, at the same time, or after the divorce itself has been finalised - though the financial arrangements cannot be finalised until after the conditional order (previously called ‘decree nisi’).
If you have dependent children, if possible, you should agree between yourselves how they will be looked after. Otherwise, the court may have to become involved in determining the arrangements for the children.
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2. How does the divorce process work?
Once the applicant has submitted the divorce application, a copy of the document is sent to the 'respondent' along with a Notice of Proceedings. The respondent is asked to return an Acknowledgement of Service, confirming that the documents have been received.
After the application has been checked by both the respondent and then the applicant, the court issues the application.
There is then a ‘cooling off’ period of 20 weeks before you can apply for a conditional order, which is the first stage of the divorce.
The court reviews the application and sets a date when the conditional order will be given. Six weeks and one day after that, the applicant can apply for the final order. When that has been granted, you are divorced (and free to remarry should you wish).
3. How long does it take to get divorced?
A relatively straightforward divorce typically takes six to eight months, provided that you both deal with the court processes promptly. It may be possible (in exceptional circumstances) to speed this process up, for example, if you want to get remarried as soon as possible - though costs will increase.
In practice, negotiations over financial arrangements can take longer than this. However, it is usually possible to get divorced before a financial agreement has been finalised - your solicitor will advise you whether this is a bad idea.
4. Does it make any difference who starts the divorce proceedings?
It should make no difference to the final outcome.
In practice, there may be circumstances that make one or other spouse want to be the applicant rather than the respondent.
If only one spouse wants the divorce, they will be the one who files for divorce. More broadly, the applicant's solicitor tends to drive the divorce process, for example, chasing up the respondent's solicitor if documents have not been returned on time.
A spouse who has religious objections to divorce may prefer to be the respondent.
The applicant who files for divorce will need to pay the court fee, which is currently £593. You can ask the court to order that the respondent pays you back all or some of the costs you incur as the applicant.
5. Does it matter who caused the divorce?
In general, it makes no difference to the outcome either in terms of the financial agreement or the arrangements for looking after the children. However, where one spouse has been guilty of seriously unreasonable behaviour - eg violence towards the other spouse - this may have consequences.
6. What do I need to prove to get a divorce?
Since 6 April 2022, divorce has been on a no-fault basis so you no longer have to provide a reason for the breakdown of your marriage.
7. How long do I need to have been married before I can get divorced?
You must have been married for at least one year before you can get divorced.
If your marriage breaks down before you have been married for a year, you may want to separate in the meantime, and to agree issues such as financial arrangements and who will look after any children.
8. Do we have to try mediation or counselling before applying for a divorce?
Divorcing couples are usually expected to consider mediation before starting court proceedings. This involves having a 'Mediation information and assessment meeting' (MIAM) to help you understand and consider the process.
You are not legally required to try mediation or counselling, but they can have advantages.
Counselling services tend to focus on the emotional side of the break-up, and can be particularly useful if only one partner wants to get divorced. By helping you to understand each other's feelings, counselling may take some hostility out of the break-up, making it easier to negotiate an agreement. In some cases, by identifying the underlying problems, counselling may encourage you both to give the marriage a second chance.
Mediation involves a skilled mediator helping you and your spouse to negotiate an agreement on issues such as financial arrangements and childcare. A skilled mediator can help you to work together to reach an agreement that you both feel is fair. This may provide a less confrontational approach than communicating through your solicitors from the outset, and can help to reduce your costs.
Whichever approach you take, you should still consult your solicitor before reaching any final agreement.
9. Do I have to use a solicitor to get divorced?
If the divorce involves children or any significant amount of money or other assets, you are strongly advised to use a solicitor. They can:
- advise you on what your rights are and what would be a reasonable financial settlement;
- help you negotiate agreement on financial arrangements and how any children will be looked after;
- make sure that court documents are correctly completed and filed on time.
Although your solicitor can advise you, it's still up to you to choose how to use the solicitor. For example, you and your spouse might try to reach a preliminary agreement between yourselves or use a mediation service.
Because a solicitor cannot act for both spouses, you should each have your own solicitor.
10. What information will my solicitor need to help me get divorced?
Your solicitor needs to understand the background to the divorce, what financial assets are involved, and whether there are any children. The information you provide should include:
- which of you will be applying for the divorce and whether you have both agreed that you should divorce;
- what you and your spouse's major assets are, such as savings, pensions, houses etc;
- what you and your spouse's income and outgoings are;
- details of any dependent children (under the age of 18, still in full time education, or having special needs).
The more information you can provide, the easier it is for your solicitor to understand the circumstances and to advise you. Your solicitor can ask your spouse's solicitor to provide details of any important information you cannot provide, but this will tend to increase delays and costs.
At the same time as providing your solicitor with this background information, you should also let your solicitor know what your major objectives are, for example, ensuring that the children stay with you (or that you have reasonable contact with them), staying in the family home and so on.
Separately, if you are not already known to the solicitor, you will need to provide evidence of your identity, for example, your passport and latest bank statement.
11. Do we have to go to court in person to get divorced?
If you and your spouse both agree to get divorced, and can reach a reasonable agreement between yourselves on finances and looking after any dependent children, you should be able to get divorced without appearing before a judge. The divorce documents will still need to be submitted to the court, but you do not need to attend court for an uncontested divorce.
12. What happens if my spouse refuses to get divorced?
Only in rare circumstances can your spouse dispute an application for divorce, for example if there are queries over the validity of the marriage or a dispute over the jurisdiction (eg for a couple married abroad).
What is more common is for an aggrieved spouse to make the process of getting divorced more difficult, expensive and drawn out. For example:
- Your spouse may fail to respond to court documents, delaying the process and increasing your costs.
- Negotiations on financial arrangements can be drawn out, particularly if every point has to be argued out through your solicitors.
- Your spouse may ask the court to intervene in deciding finances. In some cases, it may not be possible to finalise the divorce until these have been agreed.
13. If we change our minds, can we stop the divorce going through?
In the eyes of the law you are still married up until the moment when the final order is pronounced, ending the marriage. The applicant can stop the divorce proceedings at any point prior to that.
14. How much does it cost to get divorced?
The divorce process can involve up to three separate elements:
- the divorce itself - ie the ending of the marriage;
- agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable;
- agreement on the arrangements for looking after any dependent children.
The costs of the divorce itself include court fees (although it may be possible to obtain exemption from these fees if you are on a low income) and your solicitors' charges. In a straightforward case where the divorce is not contested, the solicitors' charges are likely to be in the region of £750 plus court fees and VAT. You can negotiate how these costs are shared between you as part of any financial settlement.
In addition, your solicitor will advise you on negotiating financial terms and arrangements for any children. The more involvement your solicitors have in such negotiations, the more those additional costs will increase. If you cannot negotiate agreement yourselves and have to ask the court to make rulings, costs will rise. Protracted disputes can result in very substantial costs.
It is not therefore possible to state in general terms how much these costs are likely to be as they will depend on the circumstances of the case. However, your solicitor will give you an indication of the likely costs once the circumstances are known and may be able to offer a fixed-price service if the divorce is likely to be straightforward.
15. Can I get legal aid to pay for my divorce lawyer?
Save for a small number of cases, for example, where domestic violence has been a significant feature, legal aid is not available for divorce and family cases.
16. Do we have to agree what will happen to our children before we can divorce?
You do not have to reach a final agreement before you can be divorced. But in practical terms, you will need to sort out what is going to happen once you and your ex-spouse live in separate homes. The longer you leave it to reach an agreement, the more likely it is that the court will have to become involved.
17. Do we have to agree a financial settlement before we can divorce?
No. However, it is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the final order (the order finally ending your marriage) is made. Such important entitlements as pension rights can be lost in certain circumstances once the final order is granted.
18. What if my spouse is unreasonable during divorce negotiations?
If you are still on speaking terms, try to remain calm and sympathetic. If you can, make sure your spouse realises that the longer negotiations continue, the higher the costs - leaving less for either of you. If you have children, bitter negotiations will also impact on them.
Although you may feel your spouse is being unreasonable, you should try to reach agreement without involving the court (and added court costs). An experienced solicitor can advise you if the negotiations are going so badly that going to court would be a more cost-effective route.
If you do have to apply to the court, it will set a court-driven timetable - the possibility of your doing so may help your spouse to focus on the issue.
19. What can I do to stop things turning nasty while we are negotiating the divorce?
Unsurprisingly, divorce negotiations often become adversarial, particularly if one spouse feels wronged or betrayed. If you are instigating the divorce, for example, because you have fallen in love with someone else, you may want to consider counselling. Even if you have made up your mind to get divorced, this - and the passage of time - can help your spouse to come to terms with what is happening.
Similarly, it is a good idea to try to negotiate a preliminary agreement between you on how finances will be dealt with, and the arrangements for any children. You may want to investigate using some form of mediation to help with this. Simply handing things over to your solicitors before you have agreed anything can increase the likelihood that negotiations will be difficult.
As far as possible, you should consider discussing what is going to happen next with your spouse.
20. How can I make the divorce as difficult and painful as possible for my spouse?
Divorce proceedings are generally traumatic and expensive enough without trying to make them worse. A responsible solicitor will not deliberately aggravate what is already a difficult situation. Making things difficult can also result in costs out of all proportion to the financial assets involved, and may distress you - and any children - as much as your spouse.
You should be aware that if your unreasonable behaviour results in increased court costs and legal fees, the court could require you to pay both your own and your spouse's costs.
21. If I leave the family home during divorce negotiations, can I get back in?
While you remain married, the family home is a matrimonial asset and you are entitled to enter it.
Of course, there could be practical difficulties if, for example, your spouse decides to change the locks. So it makes sense to make sure you take any important documents, clothing and so on with you if you leave.
22. If I leave the family home during divorce negotiations, will this put me in a weaker position?
Leaving the home should not prejudice any final settlement.
It could, however, put you in a weaker negotiating position if it undermines your financial situation; for example, if you have difficulty paying the rent in your new accommodation and therefore want to negotiate the sale of the house as soon as possible.
23. When am I divorced and is there an official record of it?
You are officially divorced once the final order is granted. The grant of the order is officially recorded (in the court where the divorce was granted and in the Principal Registry of the Family Division of the courts in London) and you are each sent a copy.
24. Who do I have to notify that I am divorced and what documents will they want to see?
Anyone who needs to know about your marital status. For example:
- You should notify your employer, particularly if you have any health benefits, pension scheme or other employment related benefits which may be affected.
- If you are receiving benefits, you should notify the Department for Work and Pensions. (In fact, you may need to notify them earlier if you separate, as this can affect some benefits.)
- If you have joint arrangements - such as joint bank accounts or memberships - you should inform the organisation concerned. (Again, you may have already taken steps such as cancelling any joint credit cards.)
- A woman who wishes to revert to her maiden name (or a previous married name) should notify organisations such as banks and government departments.
- You should conduct a financial audit to ensure any insurance or other policies have the correct beneficiaries.
- You should consider making an up-to-date will if you have not already done so.
A copy of the final order (or in some cases, the original marriage certificate too) is generally all the documentary evidence that you need to provide.
25. Which courts deal with divorce?
Divorce and other family law disputes are dealt with by the Family Court.
Routine aspects of divorce such as uncontested divorces are dealt with in regional divorce centres. Contested divorces (with no agreement on financial matters and/or arrangements for any children) and cases where a hearing is needed are often dealt with at a more local Family Court.
You can find your local Family Court online.
26. We are foreign nationals and got married overseas - can we get divorced in England?
You can get divorced in England provided that at least one of you has been habitually resident in England for the year leading up to the date when you apply for divorce.
You can also get divorced in England if one or both of you are 'domiciled' in England, even if you are not resident here. For example, an English expatriate working overseas will usually continue to be domiciled in England if he or she intends to return here rather than emigrating permanently.
It is important to be aware that you or your spouse may be entitled to file for divorce in another country - such as your home country - as well. There may be advantages to one or other of you for the divorce to be handled in a particular country, so you should take early advice.
