The current process of obtaining a divorce in England and Wales (updated March 2023)
The new laws under Divorce, Dissolution and Separation Act 2020 which came into force in April 2022, removes the need to apportion blame, and provides a premise for a swift resolution, minimising the impact upon children, if any involved, and enabling parties to move on as the option to contest has also been removed. This post evaluates the changes introduced by the new divorce law, as well as the process involved, and the implications of it upon parties subject to it. The same changes have been instituted for dissolution and judicial separation orders.
There are four steps involved in acquiring a divorce:
1. Filing a divorce application
An online application or Form D8 must be completed by the party requesting divorce and be filed at their regional divorce centre. This is a specific requirement if a party is legally represented, or if it is applying to end a Civil Partnership. Now the new laws have taken effect, an application can be made by both divorcing couple, as opposed to one under the current laws, reflecting that there is a move towards a reconciliatory process.
The form will request the party to set out the reasons for wanting a divorce and how they intend on dealing with children and finances. In order to submit an application, the marriage certificate needs to be provided and a fee of £550 will need to be paid.
There is an eligibility criteria in law which must be met for a party to be entitled to a divorce:
- they have been married for over a year
- if the marriage is legally recognised in the UK
- if the UK is the party’s permanent home or that of their spouse and
- if their marriage has permanently broken down.
- The only ground for a divorce is the permanent break down of marriage. Under the existing law, it is necessary for the applicant to prove fault by evidencing adultery, desertion, separation for either two years if divorce is agreed, or five years, if not agreed, and unreasonable behaviour due to domestic violence, drug-taking, refusal to pay towards living costs, and/or verbal abuse.
There will no longer be a requirement for the party to prove fault, and they will instead need to make a statement of irretrievable breakdown of marriage or a joint statement, if both parties have applied for a divorce.
2. Husband or wife responds
After receiving the application, the court will notify the other party of receipt, and will require an acknowledgement of service, and a response being sent by them. The responding party will need to indicate that it has received the divorce papers, is satisfied with the reason for divorce and indicate if it agrees or contests the divorce.
The response must be sent within 8 days of receiving the application form if filed by post, or 7 days if submitted online. If a party disagrees with the divorce, it must complete an ‘answer to divorce’ form. Alternatively, the applicant can proceed by applying for a decree nisi.
One of the fundamental changes under the new law is that the option to contest divorce will no longer be available to parties, to prevent them from manipulating the process, especially domestic abusers who seek to control their victim.
3. Apply for decree nisi (known as Conditional decree of divorce)
This is the penultimate stage of the process which represents that neither party disputes the proceedings and that the court sees no issue with a divorce being granted.
As it stands under the current divorce laws, an application during this stage will need to confirm that the information provided in the application form is true by filing a statement, i.e a Statement in support of Divorce/ Judicial Separation on the grounds of adultery.
If the judge agrees, the parties are granted a certificate. The couple will then need to apply for a decree absolute which formally finalises the divorce.
4. Apply for decree absolute (known as Final decree of divorce)
This is the final step to the divorce process and is the legal document which officially ends the marriage.
In this stage, the court will ascertain if all time limits have been abided by and will check to see if there are any other reasons to deny divorce. Once the final decree, formerly known as decree absolute, has been granted, the couple are officially relieved from their matrimonial obligations.
A 2018 case heralded the end for FAULT BASED DIVORCE In the case of Owens v Owens (2018). The court refused to grant Mrs Owens a divorce, even though her marriage had incontestably broken down, because she failed to demonstrate that her husband behaved in an unreasonable way and that she could not be expected to live with him.
The case was appealed to the Supreme Court where it also failed, with Lady Hale stating that “It is not for us to change the law laid down by Parliament – our role is to only interpret and apply the law that the parliament has given us”.
Legal disclaimer: The matters contained herein are intended for general information purposes only. This post does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. While every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy, and no liability is accepted for any error or omission. Before acting on any information expert legal advice should always be sought.