Who can start divorce proceedings?
In order to proceed with a divorce, you must meet the following criteria:
- You and your spouse must have been married for over one year, and
- You meet one of the following jurisdiction requirements:
- both parties to the marriage are habitually resident in England and Wales
- both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
- the respondent is habitually resident in England and Wales
- the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
- both parties to the marriage are domiciled in England and Wales; or
- either of the parties to the marriage is domiciled in England and Wales
It does not matter if the marriage ceremony took place abroad. However, if the marriage involves links to another country, there is a possibility that divorce proceedings could be issued in another jurisdiction. If there is the risk of a jurisdiction dispute, it is important to obtain advice early to ensure that the proceedings are issued in the country that is best for you.
The application for divorce must be accompanied by a statement by the applicant or applicants that confirms that the marriage has broken down irretrievably. This irretrievable breakdown no longer requires proof, the court must now take the statement as conclusive evidence of the breakdown. In a sole application, it is necessary to demonstrate that the other party has received the application for divorce, but the post April 2022 rules allow service to the other party’s usual email address, with confirmation of an email having been sent being sent by post.
Confirmation and 20 Week Waiting Period
Once the application has been submitted to the court, and the court is satisfied about service in the case of a sole application, then confirmation must be given that the applicant or applicants wish to proceed with the divorce.
If only one party has made the application, then it is only this party that is required to provide their confirmation to the court. The consent of the other party is not required. Where an application is made jointly, then both parties would normally confirm to the court that they wish for the application to continue. If one party has changed their mind, then the application can still proceed by way of a sole application.
In addition, this confirmation cannot be given until the end of the period of 20 weeks (five months) from the start of proceedings, ie. 20 weeks from the date the application was made. This is to allow for a ‘period of reflection’ so that couples can be confident in their decision to proceed with the divorce.
In exceptional cases this waiting period may be reduced.
What is the Conditional Order?
In the divorce process pronouncement of a Conditional Order – formerly known as the ‘Decree Nisi’ – is a crucial stage. Whilst it does not mean that you and your spouse will be divorced, it is only on pronouncement of the Conditional Order that the court can make an order in respect of the financial aspects of the divorce.
A court may not make a Conditional Order unless both the 20 week waiting period has passed (or it has been shortened by the court) and one or both parties have confirmed that they wish to continue with the divorce. You and your spouse will not have to attend court to hear the court pronounce your Conditional Order.
What is the Final Order?
A Final Order – formerly known as the ‘Decree Absolute’ – confirms that you and your spouse’s divorce has been finalised and brings the marriage to an end.
If you are the applicant or joint applicants you can apply for the Final Order 6 weeks and 1 day after the Conditional Order is pronounced in court. This wait time has not changed following the introduction of No Fault Divorce in April 2022.
It is common practice in England and Wales to delay applying for the Final Order until the financial aspects of the marriage have been dealt with. This is because once you and your spouse are no longer married you would lose certain rights such as an entitlement to a widow’s pension and inheritance should your spouse die before your Financial Order is made.
Once the Financial Order has been made, it is often important to apply for the Final Order of Divorce soon after – this is because the Financial Order made by the court is not enforceable until the marriage is brought to an end by the Final Order of Divorce being granted.
Are there other financial effects of obtaining the Final Order?
A Final Order of Divorce means that you and your spouse are no longer married. This affects inheritance and so any bequest made in a Will to your ex spouse or their appointment as an executor would no longer take effect. It is important therefore to consider making a new Will.
How much will my divorce cost?
Divorce costs vary from case to case simply because cases can differ in complexity. From your very first meeting with us, we will talk to you about your individual situation and can read through our clear pricing policy. We can assure you that there will be no surprises.
If one party wishes for the other party to pay their costs of the divorce, then a separate application can be made to the court but it is only expected that a costs order will be applied for in limited circumstances, such as one party evading service or unreasonably challenging the jurisdiction of the court. The usual rule will be that both parties pay their own costs of divorce, although you may agree to share these costs between you.
How long will it take to divorce?
The media often talk about “quickie” divorces amongst celebrities. The truth is that divorce proceedings require diligent and meticulous work from your team at Rayden Solicitors in order to achieve the best possible outcome for you.
The length of a divorce very much depends on the issues in dispute, but you can be assured that however long the process may be, we at Rayden Solicitors will be available to answer all of your questions and make the process as stress free as possible.
Rayden Solicitors is also committed to equality and diversity and in doing so supports and advises all members of our community.