How to start divorce proceedings
There are many steps towards obtaining a divorce and this blog will take you through those steps.
Firstly, the government will check whether both parties are eligible for a divorce by checking whether they meet the criteria listed below.
A divorce can only be obtained if the follow is met.
- The husband and wife have been married for over a year.
- The relationship will be permanently over.
- The marriage is legally recognised in the United Kingdom.
- The husband and wife’s permanent home is in the United Kingdom. Alternatively, either the husband or wife’s permanent home is in the United Kingdom.
It must be proven that the marriage cannot be saved, and this can be done by using one or more of the following reasons:
- Adultery – this means that either the husband or wife has had sexual intercourse with some else. Adultery cannot be used as a reason if the husband and wife have lived together for over six months after finding out about the affair.
- Unreasonable behaviour – this reason includes:
- Physical violence
- Verbal abuse such as insults or threats
- Substantial alcohol and drug intake
- Refusing to pay towards shared living expense
- Parties having disagreements on major issues e.g. whether or not have children
Unreasonable behaviour is one of the broadest and most commonly used ground for divorce
- Desertion – this reason can be used if either the husband or wife has left the other for at least two years before the divorce was applied for. If the husband and wife have lived together for up to six months this reason can still be used, however this period will not count towards the two years separation.
- The husband and wife have been separated for at least two years – if the husband and wife have been separated for at least two years however still wish to obtain a divorce then both must agree to the divorce in writing. If both the husband and wife live in the same home, however have been separated for the duration of two years it is possible to prove that and therefore can still obtain a divorce.
- Separated for at least five years – if the husband and wife have been separated for at least five years then it is still possible to obtain a divorce even if the other disagrees.
Before applying for the divorce both the husband and wife need to decide on any child arrangements and any child maintenance payments. In addition, any money or property that they wish to divide needs to be decided. If both the husband and wife can decide on these amicably then they will not need to go to court. However, if this cannot be done amicably then the decision might need to be taken to court.
As solicitors we help either the husband or wife deicide on these decisions, such as child arrangements, money/property division, reason for divorce, etc. Then the other party would instruct another solicitor. By instructing a solicitor these decisions can be decided upon without having to go to court. Again, only if this is done amicably, if the parties still cannot decide then they might need to go to court.
Due to the current Covid-19 outbreak divorces are taking longer than usual.
To apply for a divorce, the following information must be provided.
- The husband and wife’s full names and address(s)
- The original marriage certificate or a certified copy, if there has been a name change since getting married then this must be proven. This can be proven by the marriage certificate, alternatively can be proven by a deed poll (a deed poll is a legal document that proves a change of name).
There is a fee of £550 in order to apply for a divorce. The fee will not be refunded after receiving the notice that your application has been issued (COP15).
If you are receiving benefits or have a low income there is help available with providing the fee.
There are two different ways which the payment can be made, it can either be made by a debit or credit card, if the payment is done this way the divorce centre will take payment over the phone. Alternatively, the payment can be made by way of a cheque made payable to ‘HM Courts and Tribunals Service’.
There are different ways you can apply such as:
Online – when you apply for a divorce online you will need a debit or credit card to pay the fee. There is a link on the government website that enables you to apply online.
Post – when applying via the post you must fill in a divorce application form (D8) known as a divorce petition. This form can be obtained from the government’s website and it is the application which starts the divorce proceedings. Once the form is filled in three copies must be sent to your nearest divorce centre. Depending on who sends the form, the opposing party will receive a copy from the divorce centre. If one of the reasons for the divorce was adultery then four copies must be sent to the divorce centre, because if details of the person who the husband or wife committed adultery with was provided then they will receive a copy too. Finally, whoever completes the form, whether it be the husband or wife, they must keep a copy for themselves.
After sending the divorce petition
The application will be checked to see if it is correct. If it is correct then the husband and/or wife will receive:
- A notice that your application has been issued (COP15)
- A copy of the application stamped by the divorce court
- A case number.
If you applied online then it could take up to ten days to receive these documents, if you applied by the post then it could take up to a month to receive these documents.
If the husband applied for the divorce, then the wife will receive the application and an acknowledgement of service from (form N9) or vice versa, and whoever receives them must respond to these documents. The acknowledgement of service form (form N9) will ask whether they agree with the divorce or whether they intend to try and prevent the divorce from happening and whether they object to pay any costs (this last one is only applicable if costs were claimed from the other, such as shared money or property).
If they agree to the divorce then both parties can continue to apply for a Decree Nisi, which was discussed in our previous blog.
If the other party defends the divorce then they must complete an answer to divorce form (form D8B) which will state why they disagree with the divorce, they must complete this form within 28 days of receiving the divorce application, if they do submit the form in time and explain why they disagree then the matter may have to be taken to court to result this dispute. Alternatively, if the disagreeing side does not submit the answer to divorce from (D8B) in time then the husband or wife who initiated the divorce can proceed to apply for the Decree Nisi.
Those are all the steps needed to be taken to obtain a divorce. Initially the husband and wife must meet the eligibility criteria as stated above and before applying for the divorce both the husband and wife must decide on child arrangements and money/property arrangements (if any), this can be done amicably though a solicitor if wished or failing which can be carried out through court. In addition, the above information needs to be given to the divorce court and the fee must be paid, this information can be provided via the post or online. Finally, if the application is accepted by the divorce court either the husband or wife will receive a stamped copy and the opposing party will receive a copy which they must respond to. Once all the above is completed and accepted the Decree Nisi can be applied for (as mentioned is discussed in our previous blog).