A very common question that divorce solicitors get asked is whether one spouse can divorce the other without their consent. This is often a very important consideration as requiring consent has the potential to prolong the divorce process and increase tension and conflict between spouses.
Can you get divorced without consent?
In short, yes, you can get divorced without consent.
The law relating to divorce changed on 6 April 2022. This simplified the process and removed the need for divorcing couples to provide a reason for their divorce.
When applying for a divorce, one or both spouses simply need to confirm that the marriage has broken down irretrievably.
Whilst there is the option to apply for a divorce on a joint basis (this is usually appropriate in circumstances where the decision to divorce is mutual), one spouse is also able to do this without the consent of the other i.e. on a “sole” basis.
The spouse receiving the application is no longer able to defend the divorce proceedings unless on the limited grounds of fraud, lack of jurisdiction or procedural irregularities. This essentially means that one spouse can choose to formally end the marriage without the other withholding consent or prolonging the divorce process.
Why was the option to contest a divorce removed?
The intention behind the change in the law was to essentially remove the need for divorcing couples to provide detailed reasons for the marriage breakdown or wait a certain period of time following a separation to obtain a divorce. It prevents a spouse who is controlling or who does not want to divorce from delaying or obstructing the divorce process by withholding their consent.
This, in turn, avoids additional conflict and upset between spouses during an already difficult time. It also allows spouses to focus on resolving the important matters associated with their divorce such as the arrangements for children and financial matters. The other benefit is that legal costs associated with the divorce process itself are minimised as there are very few arguments that can be raised to delay or stop the process by either spouse.
How to get divorced without your spouse’s consent in the UK?
All applications for divorce in England and Wales are now made through the Court’s online portal. This can be accessed by anyone with an internet connection. Applications can be made by legal representatives on behalf of clients or by spouses themselves. Applicants will need to first create an account with an email address and password.
The portal is intended to be user-friendly and includes information and instructions about how to make the divorce application and progress to the Final Divorce Order.
The Court fee for making the application is £593 and this will need to be paid by the spouse applying at the outset of the process. Once the application is made by one spouse, it will be processed by the Court and then sent by the Court to the other spouse. They will be invited to acknowledge receipt of the application within 14 days (but do not need to provide their consent to the divorce proceeding). Once they acknowledge receipt, the divorce process can continue without their further involvement and the applying spouse has control over the timetable. If they do not acknowledge receipt for any reason, the Court can deem that the application has been served on them and allow the applicant to progress without the need for the other spouse’s involvement.
Useful guidance about the divorce process and how to apply can be accessed on the Gov.uk site.
Neither spouse will need to attend Court throughout the divorce process; it is dealt with electronically by the Court and notifications/documents will be sent to both spouses by email.
The entire divorce process is likely to take around 7 months from making the application to obtaining the Final Divorce Order (this may be extended if financial negotiations or proceedings are ongoing).
The law has simplified the divorce process and now allows one spouse to apply for, and obtain a divorce, without providing reasons for the marriage breakdown or getting the consent of the other spouse. It follows that if one spouse wants a divorce, the other is (in almost all circumstances) unable to prevent it.
If you would like to receive further advice about the divorce issues discussed in this blog, please do not hesitate to contact one of our expert divorce solicitors.
