Expert support from a leading team of divorce solicitors
A breakdown of a marriage or civil partnership can be difficult. You need pragmatic, expert advice. Our experienced divorce solicitors can give you the guidance you need.
We ensure that your case is dealt with sensitively and with respect for ongoing relationships. As members of Resolution, the family law association, we adhere to their Code of Conduct and take a non-confrontational approach where possible.
What to expect from our divorce solicitors
Whether a divorce or dissolution of a civil partnership, our divorce solicitors will work with you to understand your situation and the best way forward. We encourage clients to maintain a constructive dialogue, especially when children are involved. We will endeavour to resolve even complex cases sensitively and without court proceedings. If your case does require a court-based settlement, our experienced team of divorce lawyers will support and prepare you for this. We provide:
Pragmatic but personal support
Sensitive and constructive dialogue
A focus on settlement
Jurisdiction for divorce or dissolution
In order to divorce, you need to have been married for more than a year.
There are various requirements to establish jurisdiction, but if either you or your spouse are resident in England and Wales, then it is very likely that you will be able to seek a divorce there.
If either you or your spouse are not resident or domiciled in England and Wales, the courts may not have jurisdiction. Either of you may be able to commence divorce proceedings elsewhere. Whether this is the case and whether it is advisable depends on your specific circumstances. It is very important that you should take advice.
In Scotland, there is a different set of legislative acts governing divorce. Please see our specific sections on divorce in Scotland if you believe your case may require to be dealt with under Scottish law. If you are in any doubt we have divorce solicitors in both jurisdictions who can assist.
Where should the divorce take place?
It might be that there is more than one possible jurisdiction for a divorce, and again, urgent advice must be taken, as timing could be critical for a petition to be filed in one jurisdiction, rather than another. In some jurisdictions, the first in time rule will apply; in others it might be that the matter is decided on a basis of what is most convenient (forum conveniens).
In many jurisdictions, the financial remedies on divorce will be linked to where the divorce takes place. The outcome for a financial settlement might be very different in one jurisdiction, rather than another.
Family law and our legal interaction with the EU is currently governed by the transitionary arrangements which keep in place EU rules and regulations pending agreement being reached as all aspects of the UK’s future relationship with the EU. The transitionary arrangements continue the regulations and laws which were in place when the UK was part of the EU.
How that will change will depend on what if any agreement is reached with the EU by the end of 2020 and whether that covers all aspects of family law currently affected.
If your case has any international element or you or your spouse has any connections to an EU you should seek urgent advice as to the potential impact on you and any immediate action which should be taken.
Divorce in England and Wales
Grounds for divorce or dissolution
The ground is that the relationship has irretrievably broken down. To establish this, you must rely on one of five facts. These are:
Adultery (note: not applicable to same-sex civil partnerships or divorces).
Separation for 2 years with both parties' consent.
Separation for 5 years without the other person's consent.
Although we currently still have a fault-based system, we will explore with our clients the best way to minimise conflict within the process.
Is no fault divorce available?
Not yet. The Divorce, Dissolution and Separation Act 2020 has now been passed and given Royal Assent. It reforms the law so that no fault divorce will be available once the Act has been implemented, currently anticipated to be Autumn 2021.
The first step is for your divorce petition to be issued at court. Your marriage certificate and a court fee are required. If you bring the divorce petition you are known as the petitioner.
The court serves the petition on your spouse. They will be known as the respondent. They must return their acknowledgement of service to the court.
The petitioner may then apply for the first stage of the divorce, decree nisi. This involves completing an application and standard statement in support.
The court reviews the application and, if satisfied that the criteria are met, grants a certificate of entitlement to decree nisi and sets a date for pronouncement.
Decree nisi is pronounced in open court and a copy sent to both parties. From this stage onwards, the court has the power to make financial orders if asked.
Six weeks and one day after decree nisi, the petitioner may apply for decree absolute. If they do not the respondent may apply three months after that.
Decree absolute is made and sent to both parties. Decree absolute finally terminates the marriage. It does not sever financial links between the parties.
It is possible to obtain a divorce through an online service provided by the court service.
It is possible to defend a divorce if you do not accept that the marriage has irretrievably broken down. To do so, an answer must be filed within a limited time frame from service of the petition. It is also possible to cross petition with your own allegations. It is important to note that whilst, save for the pronouncement of decree nisi, undefended petitions are private. By contrast, defended divorces are heard in public proceedings. There are also cost consequences of defending divorces. The procedure requires specialist advice.
Effect of Decree absolute
Decree absolute finally terminates your marriage. Once you have a decree absolute you are free to remarry.
It also affects inheritance under a will. You should review your will after decree absolute as some or all of its provisions may no longer be valid after divorce.
Decree absolute does not terminate your financial rights and responsibilities against or towards your former spouse. Financial issues have to be considered and addressed separately in a court order in order to achieve finality. This can be done by consent, utilising a number of different dispute resolution options, or through the court.
In certain very limited circumstances, it is possible to obtain a declaration that the marriage was void or voidable. This is a complex area of divorce law and highly fact-specific. If you consider this may be relevant to your circumstances you will need to take specialist advice which we would be happy to assist with.
Like defended divorces, this process is heard in open court.
Religious marriages and divorces
A legal divorce does not fulfil the requirements of a religious divorce which are specific to the religion in question and must be dealt with separately, additional to a legal divorce. Equally fulfilling the criteria to obtain a religious divorce alone will not mean that you are legally divorced.
If you do not wish to divorce but do require a formal legal separation, you can apply for a judicial separation. The process and legal implications of a judicial separation are different from divorce. Most significantly, your marriage is not terminated by a judicial separation.
Whether it is advisable to opt for judicial separation instead of a divorce will depend on your particular circumstances upon which you will require advice.
Divorce in Scotland
Scottish divorces are governed by the Divorce (Scotland) Act 1976 and the Family Law (Scotland) Act 1985.
There is a no fault-based system of divorce in Scotland. That means that the reason for the divorce such as adultery or behaviour has no bearing on the financial orders that will be granted. Instead, the courts only need to be satisfied that there has been an irretrievable breakdown of the marriage such that there is no possibility of any reconciliation.
Simplified divorce in Scotland
If there are no children under 16 and financial matters have already been resolved by agreement, an application can be made for a simplified divorce. This requires a divorce application form to be completed and lodged at court. There is a fee to be paid to the court. The other party needs to be notified.
Ordinary divorce in Scotland
If there are still financial matters in dispute or issues in respect of children to be resolved a normal divorce action requires to be raised.
The process of applying for a divorce in Scotland is by way of an initial writ being lodged at court. Once a person has obtained a divorce they have no right to ask for further financial orders except in very exceptional and rare circumstances. Accordingly, it is imperative that anyone raising or defending a divorce ensures that they take advice beforehand to ensure they protect their right to any financial claim before the divorce is granted.
Unfortunately, until no fault divorce law is implemented in England and Wales (it is currently proceeding through Parliament), unless a couple has been separated for more than two years and agree to a divorce, a divorce can only proceed on the basis of one party’s fault – either their adultery or behaviour.
Please remember that Scottish law is different and that you need advice from an expert in that jurisdiction.
A solicitor can help you prepare a divorce petition in such a way as to ensure that it meets the legal criteria. In accordance with good practice, they will help you and your spouse avoid unnecessary acrimony and suggest that you try to agree the content in advance of issuing the petition with the court.
The Divorce, Separation and Dissolution Bill Act 2020 (bringing in no fault divorce) now has Royal assent. It is anticipated that its terms will be implemented by Autumn 2021 at the earliest. In the meantime, the fault-based system remains in place for those people currently wishing to divorce.
Behaviour is defined in S1(2) (b) of the Matrimonial Causes Act 1973 as "the respondent [i.e. the other party] has behaved in such a way that the petitioner [the person who issues the petition] cannot reasonably be expected to live with the respondent".
It is necessary to give several examples of behaviour in a divorce petition to establish this 'fact', and they must satisfy a test that not only you but also a third party, would agree that the other person's behaviour is such that it is not reasonable for you to be expected to continue living with your spouse.
In accordance with good practice, a solicitor can help you prepare a petition to ensure that it is sufficient to meet the legal criteria, but which is not going to unnecessarily antagonise your spouse.
In English/Welsh law, if matters are defended, your spouse will need to complete the Acknowledgment of Service form to indicate that they intend to defend the proceedings, and also file an Answer to your petition, setting out why they object to the divorce. They may also file a Cross-Petition, which means that they are endeavouring to divorce you on a different ground/fact.
The court will fix an appointment for the judge to make directions for the filing of evidence if a way forward cannot be negotiated. A contested court hearing will then follow. It will take place in open court, which unlike the majority of family law proceedings, is open for members of the public to attend. Evidence will be heard from both parties, and any supporting witnesses if applicable, and the court will make a decision based on a balance of probabilities.
Contested divorce proceedings can be lengthy, costly and time-consuming when the likelihood is that both parties have decided that their relationship cannot continue. As such, they tend to be few and far between.
In the divorce petition, the petitioner will indicate whether they seek an order for costs on the divorce.
If an order for costs is sought, it is in the court's discretion whether to make an order.
Generally, an order for costs will be made if the petition proceeds on the facts of adultery or behaviour, but if a petition proceeds on the basis of separation (two or five years) the court will often not make an order for costs unless the parties have agreed a costs provision between themselves.
A party can make representations about costs at the Decree Nisi hearing, provided that they have given the court the required notice that they intend to do so.
It usually takes six to 12 months to complete English/Welsh divorce proceedings from when they are issued at court although your solicitor may advise you to delay applying for Decree Absolute (which finally terminates your marriage) until financial matters have been resolved.
However, this may vary depending on your local court service or whether you issue online.
You would need to check details of your ceremony to ascertain whether it complied with civil law regulating marriages in the country in which you were married. If it did not, you will not be legally married and as such, do not have the status of a spouse. Neither will you need to get divorced in civil law (but there might be a religious process you wish to go through).
Even if you are not married, there may be legal remedies available to you – as a cohabitant or as a parent.
This answer applies to a divorce progressing in England and Wales.
You should endeavour to negotiate your financial settlement at the same time as discussing the divorce itself. A financial order is a separate document to those documents arising from the divorce (e.g. your Decree Nisi or Decree Absolute) and it records your financial settlement/deals with all other financial obligations that might have arisen between you and your spouse because of your marriage. Even if you think that there is nothing to sort out financially, you should still take expert legal advice as an order is always strongly recommended. Unless and until a final order is made, all potential financial claims remain open. See our dedicated page on divorce finance.
If you have agreed financial terms, they should be recorded in a draft court order. You cannot file a draft order with the court, requesting approval by the District Judge, until you have passed the date of your Decree Nisi.
There are special rules applicable to Scottish financial settlements, and expert advice should be sought.
Not necessarily, as issues in relation to your children may arise at any stage during their minority. However, it is clearly prudent to start discussing plans for the children at an early stage when you start to consider separating/divorce.
Please see our child law page for more information.
If a divorce proceeds in England or Wales, in order to file a divorce petition, the court require your original marriage certificate or a certified copy which can be obtained from the General Register Office. The marriage certificate is retained by the court after the divorce is concluded.
There is also a court fee payable to the court when a Petition is filed which is currently £550.
A divorce petition must be completed, stating the fact upon which you rely to establish that your marriage has irretrievably broken down.
The Decree Absolute is the final stage of the English/Welsh divorce proceedings and this can be applied for six weeks and one day after the Decree Nisi.
If your spouse has filed the petition (and so is the Petitioner) but they have not applied for Decree Absolute, then after a further three months you are able to make an application for Decree Absolute.
The court will grant the application unless there is good reason not to do so. Examples of which may be that financial issues have not been resolved.
It may be in your interests to delay an application for Decree Absolute, especially if there are outstanding financial issues to be resolved. Once the Decree Absolute has been granted, the marriage is at an end and both parties are free to remarry if they wish.
It depends. Whether you can get a divorce (called jurisdiction for a divorce) differs with each legal jurisdiction, which have their own laws and criteria that need to be met. Jurisdiction is often regulated by the parties’ domicile or place of residence at the time of a divorce, and timeframes might apply. As such, where you actually got married might have no relevance at all.
However, the ceremony you celebrated, and whether it complied with marriage laws in the jurisdiction where you married, is very relevant. See our answer above regarding religious marriages.
You can only get a divorce in a legal jurisdiction in which you meet the criteria for issuing divorce proceedings. As explained in our earlier answer, this is often regulated by the parties' domicile or place of residence at the time of a divorce.
In some cases, one or more legal jurisdiction might be available to you. In that situation, you would need to take legal advice in each jurisdiction to work out which jurisdiction might be preferable for you to issue proceedings in. In particular, the outcome of a financial settlement for you might be very different in one place than another, and expert advice is needed in all possible jurisdictions.
There are specific legislative rules in place governing where a divorce can be raised within the United Kingdom and also the EU (for the moment) based primarily on where the parties have last been habitually resident when they separated. The jurisdiction of the court is therefore not based on the country in which the marriage took place.
For many couples who have moved around the UK during their marriage, this can mean that sometimes Scotland might have jurisdiction to hear the case while sometimes it may be England and Wales. As there can be substantial differences to the financial outcome for both parties, early advice should be sought if a person is contemplating divorce in either country. We have experts who can advise on Divorce in England, Wales, and Scotland.
Yes. Timing can be critical, as in some jurisdictions the divorce petition issued 'first in time' can secure a divorce in a particular jurisdiction.
Other cases are determined on the basis of which jurisdiction is more 'convenient' for the divorce, for example, where the assets are primarily located (known as forum conveniens). Detailed advice is required as these cases can be very complex.