Preconditions for a divorce being granted by a court in England and Wales
At the time of petition:
- The marriage must be legally recognised in England and Wales
- The marriage must have had a duration of at least one year
- Barring exceptional circumstances that grant what is known as residual jurisdiction[1], at least one of the following must apply:
- The respondent is habitually resident in England and Wales
- The petitioner is habitually resident in England and Wales, and has resided there continuously since at least a year ago
- The petitioner is domiciled in England and Wales, and has resided there continuously since at least six months ago
- The petitioner and respondent were last both habitually resident in England and Wales, and one of them still resides there
- The petitioner and respondent are both domiciled in England and Wales, irrespective of habitual residence
Procedures for obtaining a divorce in England and Wales
- Complete form D8[2], ‘Application for a divorce or dissolution (ending a civil partnership)’. This may legitimately be done jointly by both parties, one party acting alone or through representation by a solicitor. In order to ensure that the divorce application is correctly drafted and all relevant supporting documents are submitted to the court, representation by a firm of expert solicitors specialising in divorce law, such as Battrick Clark of Whiteladies Road, Bristol, is highly advisable.
- Submit the completed form together via Her Majesty’s Courts and Tribunals Service (HMCTS) on-line portal together with the court fee (£593 in August 2022) and a certificate of marriage or civil partnership (as applicable).
- If the applicant was acting alone, the application will be checked to ensure that it is correct. Following that, the applicant will be sent a notice that their application has been issued, a copy of the application stamped by HMCTS and a case number allocated
- The respondent to the divorce application will receive a copy of the application either via email or post together with an acknowledgement of service form to complete and submit via the HMCTS portal within 14 days of the date of receipt
- Once the respondent’s acknowledgement of service has been lodged with HMCTS, the applicant can apply for a conditional divorce order following a period of 20 weeks after the divorce application has been issued.
- If a joint application is submitted to the court, both parties will complete the acknowledgement of service and apply for the conditional and final divorce orders.
Grounds for divorce in England and Wales
Following a new law introduced in April 2022, parties no longer have to prove that a marriage has irretrievably broken down by providing a given reason. Indeed, there is no longer an option in the application form (D8) to claim unreasonable behaviour, adultery, separation (2 and 5 years) or desertion. This has removed the apportioning of blame from the divorce process entirely. This change was legislated with the aim that the divorce process is simpler and non-adversarial and will reduce potential litigation.
When the applicant(s) complete the D8 form, Section 6.1 now gives them only one option, which is to tick a box confirming that the marriage has broken down irretrievably. This can be declared by a sole applicant or jointly by both parties within the same application. No specific reason for the divorce needs to be given, nor is any space made available on the form for doing so.
The Prayer
Section 9 of form D8, headed ‘Summary of what is being applied for (the prayer)’, serves three distinct purposes. It:
- Formalises the central request for divorce, judicial separation, or dissolution.[3]
- Asks the sole applicant or applicant if they wish to apply for a financial order.[4]
- Asks applicant 2 if they wish to apply for a financial order.
Procedure for responding to a divorce application filed with a court in England and Wales
Once the Respondent receives the divorce application from HMCTS, they must return the acknowledgement of service form (form D10) that accompanied the application to the court within 14 days.
If the respondent is happy to proceed with the divorce, the D10 form is returned and following the 20-week period from issue of the application, the applicant will then apply for a ‘conditional divorce order’. Following this, a ‘final divorce order’ will need to be applied for 6 weeks after the date of the conditional divorce order to legally finalise the divorce.
If the respondent wishes to dispute the application for a divorce, they may defend the divorce petition by filing with the court a document called an Answer. This requires the payment of an additional court fee.
However, under the new rules in force since April 2022, there are very limited grounds for defending a divorce application. It is not permitted to dispute the petitioner’s contention that the marriage has broken down irretrievably. The application may only be disputed on one of these four uncommon technical legal grounds:
- The court lacks jurisdiction to entertain the divorce proceedings
- The claimed marriage was not legally valid in the first place; therefore no divorce is possible.
- The marriage has already legally ended; therefore, no further divorce is possible.
- The divorce will cause the respondent grave financial hardship
Before considering filing an Answer, respondents should bear in mind the following:
- The court fee in England and Wales for filing an Answer was £245 in August 2022.
- Prior to April 2022, answers aimed at denying the facts claimed in support of the divorce already had a poor success record, with judges typically taking the view that if one partner believes that a marriage has broken down, it has done.
- Since April 2022, only a genuine legal reason in one of the four categories above would be considered as grounds to dispute the divorce.
- If the court rules that an Answer was unmerited, it may award costs against the respondent.
Procedure for Financial Settlements
The financial resolution ancillary to divorce is formally handled separately from the divorce process itself.
- Attempt to negotiate an agreed financial settlement with the other party during the divorce proceedings. This is not legally necessary but is best practice for keeping costs manageable and resolutions mutually acceptable, wherever possible Experienced divorce lawyers can be helpful in the negotiation process. Mediation is also recommended by solicitors to try and resolve financial issues
- In negotiated settlements, a lump sum may be offered in lieu of ongoing maintenance payments to the other spouse, but not in lieu of child maintenance payments.
- When making a joint application for divorce in which there is agreement on how the marital assets will be shared, ensure that Section 8 and 9 of the D8 form are filled in to reflect an application for a financial order made by consent to make it legally binding.
- If a financial agreement cannot be agreed, the court can make the decision for them. However, the same process of applying for a financial order within the D8 form can be followed subsequently.
- If it is not possible to reach a voluntary financial settlement or the terms of that settlement are not being adhered to by the other partner, then once the divorce application has been issued, you will need to complete and submit to the court the government-issued Form A, Notice of [intention to proceed with] an application for a financial order [5], to initiate formal judicial financial resolution proceedings. This can even be done any time after the final divorce order but before the party applying for the order remarries / forms a civil partnership (if applicable).
- Form A is quite a complex form, and hiring the services of a competent, reputable solicitor may again be helpful here.
- You will also need to attend a mediation information and assessment meeting (MIAM) with a mediator before you send your application to the court, as the mediator is required to sign the form, save in certain circumstances.
- The cost of filing Form A was £275 in August 2022.
Judicial Guidelines for Financial Settlements
- The economic needs of children are considered separately and prioritised.
- Child maintenance payments are required for all children aged up to and including 16, but also extend to those aged 17-20 who have remained in full-time education or whose resident parent is in receipt of child benefit.
- The amount of child maintenance due is expected to be decided by voluntary agreement between the parents, but in the absence of such agreement, the Child Maintenance Service (CMS) functions are to calculate and enforce payments.
- Step-parents who divorce natural parents may be required to pay child maintenance if they have acquired parental responsibility for a child (CMS) or the court can order child maintenance in specific circumstances
- Provisions for maintenance payments to the other partner are not compulsory if both partners have agreed not to make a claim . Where they are applied for, they take into consideration factors including:
- The income and earning capability/capacity of each partner
- Special financial needs such as those arising from disabilities
- The accustomed economic living standard prior to the divorce
- The duration of the marriage and age of the partners
- In the event of the recipient of maintenance remarrying, the existing spousal maintenance order from which they have benefitted will be automatically discharged.
- In the event of either the economic circumstances of the recipient of maintenance substantially improves or those of the payer substantially deteriorates, the payer of maintenance may apply for a reduction or cessation in payments. Equally, if the amount of maintenance is insufficient to meet the recipient’s essential costs, they can apply to increase the amount of maintenance from the paying party
- In the calculation of financial assets at the time of divorce, trust funds are counted, and all overseas savings and assets must be fully disclosed; but expected future inheritances are not considered unless the deceased’s estate is in administration
- Courts may occasionally punish dishonest and obstructive behaviour in the process of litigation by making costs orders against the relevant individual.
Terms and definitions:
- England and Wales – For purposes of jurisdiction, England and Wales are treated together as a single entity. Scotland has its own separate laws.
- Domicile – the country considered by someone to be his / her permanent home
- Habitual residence – the country where someone voluntarily lives for settled purposes (temporary and occasionally absences do not count against this)
- Petitioner – the party who launches the petition for divorce
- Respondent – the other party in the marriage
- Prayer – the petitioner’s set of requests to the court
Selected sources:
https://www.gov.uk/government/news/new-divorce-laws-will-come-into-force-from-6-april-2022
https://www.gov.uk/respond-divorce-application
[1] A full list of these was given on page 4 of the old version of the supporting document ‘D8 Notes’, now at https://www.justice.gov.uk/downloads/fjr/d8-notes.pdf. Please note however that parts of this document, especially those relating to grounds for divorce, are now obsolete, and it cannot be relied upon. The new version of the D8 notes document does not use or define the term ‘residual jurisdiction’ at all – see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688087/d8d-notes-eng.pdf
[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1064336/D8_0422_save.pdf
[3] Dissolution applies to civil partnerships only
[4] Financial orders determine how the assets within your marriage are to be divided. More information about financial orders and how they work can be found within and alongside Section 8 of the D8 form, where the applicant may indicate their intention to apply for financial orders for themselves and/or for children of the marriage.
[5] https://www.justice.gov.uk/downloads/forms/fjr/Form_A_web_0414_3.pdf