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Guide to Divorce Proceedings [post April 2022]

The long-awaited enactments, that pave the way for no fault divorces, have now become law with The Divorce, Dissolution and Separation Act 2020 (DDSA 2020).

This guide is only applicable to divorce proceedings started on or after 6th April 2022.

The changes apply equally to the dissolution of civil partnerships.

This guide focuses on the person applying for a divorce. A section at the end of this guide looks briefly at the position of the respondent (the person who receives notice that their spouse/civil partner has filed for divorce).

There is also a guide on divorce proceedings which started before 6th April 2022.

Understanding the terminology

The divorce process is full of words and phrases which are rarely used day-to-day and can cause confusion. The recent change in law has also changed the terminology.

Set out below are the most common terms:

The Applicant (previously called the ‘Petitioner’) – This is the person who is starting the divorce.

The Respondent (remains the same) – This person is responding to the divorce brought by their spouse.

Issuing the Application (previously called issuing the ‘Petition’)– This is the sending of your application to the court to be processed.

Conditional order (previously called ‘Decree Nisi’) – The certificate that the court will send you at the half way stage of the divorce.

Final order (previously called ‘Decree Absolute’) – The certificate that the court will send you when the divorce is finalised. This confirms you are divorced and you should keep it safe when you receive it.

Disputed proceedings (previously called ‘defended proceedings’) – when the Respondent disputes that the divorce can be brought on technical grounds (note that they CANNOT dispute whether or not the marriage has broken down – see further explanation below).

Do I have grounds for divorce?

There is only one ground for divorce which is that the “marriage has broken down irretrievably.” You therefore must confirm that the marriage has broken down completely, before you can continue with the divorce.

Previously, this claim had to be supported by evidence showing one of five facts (e.g. adultery, behaviour, desertion or separation of 2 or 5 years). Please note that this is no longer the case.

Now, with the new no fault divorce law, no blame has to be assigned to seek a divorce, and so no evidence is required to show the marriage has broken down irretrievably. All you have to do is tick a box to confirm that it has.

Can the divorce be defended?

As no blame is assigned nor evidence required, this also means that the respondent is NOT able to defend against the divorce, i.e. they are NOT able to dispute whether a marriage has broken down.

The only way to contest a divorce is to ‘dispute’ it on technical grounds.

Applications can only be disputed on the basis of:

  • Jurisdiction;
  • The validity of the marriage or civil partnership;
  • The marriage or civil partnership has already been legally ended (i.e. a Talaq in a Sharia-recognised jurisdiction).

Please note that BOTH parties have a duty to provide any information of existing or concluded proceedings in respect of the marriage or civil partnership which may have affected its validity or subsistence. If it appears to the court that there are proceedings outside of England and Wales which are capable of affecting the validity of the marriage, the court must consider if it is necessary to give directions to stay the proceedings.

These matters are complex. If you think any of the above may apply in your situation, we recommend seeking further legal advice.

Other key changes

Joint applications

The new divorce law allows parties to issue a joint application.

Applicants are known as “Applicant 1” and “Applicant 2”.

Applications can be made digitally or by paper (see more detail below on how to fill in the divorce application); BUT while either applicant can pay the court fee on paper, Applicant 1 must pay on a digital application.  

One solicitor can act for both parties if you wish to issue a joint application. However, if any issues arise during proceedings, the joint application is able to be converted from a joint to a sole application (for example, if issues regarding children and/or finances cannot be resolved between you).

Delay to deal with finances

The respondent can in all cases seek to delay the Final Order for the court to consider finances (this used to be limited to cases of separation under the previous divorce law).

How do I start the divorce process?

To start divorce proceedings, you will need the following:

  • Divorce application (Form D8). This can be done on paper and sent to the court by post, or filled in as an online application using a MyHMCTS account which you can sign up for.
  • There’s a £593.00 fee to apply for a divorce. The way you pay depends on how you apply OR you can complete a fee remission form (Form EX160) with supporting evidence (see more on paying the fee or applying for the remission below).
  • Your original marriage certificate or a certified copy of your marriage certificate issued by the place you were married. A certified translated copy will need to be provided if it is not originally in English.

Completing the divorce petition

The divorce petition is set out in “sections.”

Section 1, Your Application – You need to tick the application you are making (divorce or dissolution) on the grounds that the marriage has broken down irretrievably; tick at 1.2 whether you are making a sole or joint application; and tick at 1.3 that you are including a copy of your original marriage certificate.

Sections 2 and 3, About you and the respondent – You need to insert all the information that the form asks for about you and your spouse. This includes information about how you want your spouse (if it is a ‘sole application’) to be ’served’ (sent the application). You should try your best to find out the respondent’s address and email but, if you are unable to do so, you should contact a solicitor for more information and advice about how to continue with your divorce. Issues with ‘service’ of the application on the spouse are complex, and so we would recommend that you seek further legal advice should you not have up-to-date contact details for your spouse, or you think they may not acknowledge service.

Section 4, Details of marriage/civil partnership – Here you need to put in all the details of the marriage. You must insert the details exactly as they appear on your marriage certificate. If you do not have your marriage certificate, then you will need to contact the registry office where your marriage was registered to obtain a copy. You cannot progress your divorce without the marriage certificate.

Section 5, Why this court can deal with your case – This section looks at jurisdiction (i.e. what country should be dealing with the divorce). It is likely that both you and your spouse live in the same house, and have done so during the course of the marriage. If this is the case you should tick “The Petitioner and Respondent are both habitually resident in England and Wales.” If this is not the case, you may need to get further advice from a solicitor about your circumstances.

Section 6, Statement of irretrievable breakdown – You need to confirm to the court that the marriage has broken down irretrievably by ticking the box.

Section 7, Existing and previous court cases – You need to tell the court if there have been any other court proceedings in relation to the marriage. If there are any proceedings, you need to insert this information.

Section 8, Dividing your money and property – You need to indicate whether you intend to apply for a financial order from the court, and whether you wish to apply on behalf of your children also. You will see in this section that it refers to a financial order. If there are financial matters within your divorce which need to be resolved, you should get advice from a solicitor as these are very serious and complex matters.

Section 9, Summary of what is being applied for – This is called the ‘prayer’, and you must tick the correct boxed to summarise what you are applying for. You need to tick the boxes which confirm that you are asking for your marriage (or civil partnership) to be dissolved and also if you are asking the court to grant you an order to pay your costs for divorce.

Section 10, Statement of truth – You must complete and sign in the box provided to confirm that all details on the form are true. Please note that proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement in a document which is verified by a statement of truth.

REMEMBER TO SIGN AND DATE THE DIVORCE PETITION

The final section: Court Fee – You can detail how you intend to pay the court fee here.

Please note that throughout there are reference to Applicant 1 and Applicant 2. If you are making the application alone (a ‘sole application’), you only need to fill out the part for Applicant 1. If you are making a ‘joint application’ with your spouse/civil partner, you both need to fill in the form as Applicant 1 and 2.

The divorce petition can be completed and submitted in 2 ways:

  1. Using the Form D8, which you can download from the government website. Send a copy of the form and any accompanying documents to:

HMCTS Divorce and Dissolution service
PO Box 13226
Harlow
CM20 9UG

Keep your own copy of the form.

  • Using the online portal at MyHMCTs which takes you through the form online. Submit it online, uploading any accompanying documentation at the end of the process where it directs you to.

What fee do I have to pay and what if I cannot afford it?

There is a fee of £593.00 to issue your divorce petition at the court. However, if you are on a low income (or benefits), you may qualify for an exemption from the fee which means you will either not have to pay the fee or you may be able to pay a reduced fee.

The form you need to complete to seek remission of the fee is form EX160. You must provide evidence of your income with this form. The information you must provide is set out in the notes of this form and you can get a copy of these notes from the court website or from the court directly. You can also make the application for a fee remission online.

If you are not eligible for fee remission and must pay the £593.00, you can pay by methods detailed at the end of the divorce application Form D8:

  • debit or credit card (for example, this method must be used if applying using the online portal); OR
  • send a cheque to the court for £593.00 made payable to “HM Courts and Tribunals Service” (for example, if you are sending in your application by post).

The full details of how to pay depend on how you issue your application. Please check the specific details on the government website at the time of issuing.

The marriage certificate

You must submit a copy of the original or a certified marriage certificate with your divorce application, whether the application is completed online or sent in by post. The court will reject your application if you do not include this. If you do not have an original marriage certificate, you can get a certified copy from the registry office where your marriage was registered.

If your certificate is not in English then a certified translation must also be provided. The court will keep the documents you send. If you want them back you will need to apply for their return.

Children

You and your spouse may need to decide about the arrangements for any minor children after you divorce. This is not dealt with in the divorce process and therefore out of the scope of this guide. If you have any questions about arrangements for children after divorce, we recommend you seek legal advice as soon as possible.

What happens next?

The court will “issue” your divorce application by giving it a case number and opening a file for you at court.

The court will:

  • Send a copy of the divorce application to your spouse with a document called the ‘Acknowledgement of Service’. They may alternatively send a letter to them with instructions of how to set up an online account so that they can respond to the proceedings online. This will be done within 28 days of your divorce application being issued.

The court will send the divorce application to your spouse using the email address you provided; they will also send a notice confirming service to the respondent’s postal address.

The court will do this unless you have elected to arrange service on the respondent yourself – see section 3 of the divorce application Form D8.

Matters relating to ‘service’ of the application on the spouse are complex, and so we would recommend that you seek further legal advice if you wish to arrange service yourself.

  • Send you a copy of the issued divorce petition with a letter which tells you what date the divorce petition was sent to your spouse.

What should my spouse be doing?

When your spouse gets the documents from the court, which will include a letter from the court, a copy of the divorce application, and potentially an Acknowledgement of Service form, they will need to either set up an online account with the court and complete the Acknowledgement online or complete the paper Acknowledgement and return it to the court by post. The court will send you a copy of the Acknowledgement of Service once they receive it.

This document is used by the court to confirm that your spouse has seen the divorce petition and knows that you wish to get a divorce, and to see whether or not your spouse has any comments on the divorce (for example, whether they dispute it on technical grounds i.e. in relation to jurisdiction –they can no longer defend against the divorce otherwise).

14 days from the date of service, the Acknowledgement of Service must be completed by the respondent (including by joint applicants).

35 days from the date of service, if the respondent intends to dispute the proceedings they must send in their answer.

If your spouse does not return the Acknowledgement of Service then you will need to seek further legal advice in relation to your divorce, because this may mean that further court applications within your divorce process need to be made.

When you receive the Acknowledgement of Service the first thing that you need to check for is whether your spouse wants to dispute the proceedings. If this is the case, then you should seek further legal advice as disputed divorce proceedings are too complex for this guide to address.

You can see a simple flow chart that takes you through what can happen if your spouse does/does not fill in the Acknowledgement of Service. This gives some practical advice, but is not comprehensive and so we advise you seek further legal assistance if you are not sure how to proceed.

How do I get the Conditional Order?

You must wait 20 weeks after your divorce application has been issued before applying for the Conditional Order, which is essentially the half-way point to getting your divorce. A conditional order is a document that says the court does not see any reason why you cannot end the marriage/civil partnership.

If you applied to end your marriage/civil partnership online, you’ll be told how to apply for the conditional order online. Essentially, you would complete the relevant form online using your MyHMCTS account.

You can apply for a conditional order as a sole applicant, even if you started the process jointly with your spouse/civil partner.

To apply by post, there is one form you will need to complete to get your Conditional Order: Form D84. Simply complete, sign and date this application form. This is the same form for both sole and joint applicants.

You must attach a copy of the respondent’s signed Acknowledgement of Service to this document.

You must sign this form again with a statement of truth which verifies that the facts in your statement are true. Please note that proceedings for contempt of court may be brought against a person who makes, or causes to be made a false statement in a document which is verified by a statement of truth.

You should send the Application for a Conditional Order to the court.

There is no fee for this application.

Respondent’s Guide

Being the respondent in divorce proceedings is far simpler as you are not involved (necessarily) in needing to consider the application for the divorce and the only form you will need to complete and return is the Acknowledgment of Service form. You will receive this with the court papers that are served upon you. If you do not receive a paper Acknowledgement of Service you will receive a letter from the court with instructions on how to set up an online account so that you can respond to the divorce application online.

You should complete the Acknowledgment of service and return it to the court either by post or by submitting it online.

After sending in the application for Conditional Order?

Once your application is sent to the court, you should wait for the court to send you a document which confirms that you are entitled to the Conditional Order.

They will send you a document which tells you the date that Conditional Order will be granted. You do not need to attend court on that date.

When the Conditional Order is granted, the court will automatically send you a certificate confirming this. This may take several weeks.

It is possible for the court to send you an order which confirms that the Conditional Order was not pronounced and why. There could be a variety of reasons why the court has chosen to do this. If this is the case and you feel you need further advice, you should see a solicitor.

How do I get the Final Order?

The Final Order is the end of the divorce process and confirms that your divorce is finalised.

You can only apply for the Final Order 43 days (six weeks and one day) after the Conditional Order was granted. Check your Conditional Order certificate for the date. Make sure you calculate the six weeks and one day carefully as if you apply before this day then your application will be refused. For example, if your Conditional Order was granted on 15th April 2022, the earliest date you can apply for the Final Order will be on 28th May 2022.

If there are any financial matters which need to be resolved in relation to your marriage, i.e. that either you or your spouse own any property or have any assets, you need to do this BEFORE you get your Final Order. We would also recommend you resolve matters relating to the arrangements for any minor children before the Final Order. You should seek legal advice about this as soon as possible.

If you applied to end your marriage/civil partnership online, you’ll be told how to apply for the final order online. Essentially, you would complete the relevant form online using your MyHMCTS account. You can apply for a final order as a sole applicant, even if you started the process jointly.

If you applied by post and you are the sole applicant or applicant 1, you should complete the Form D36 fully and send it to the court to be processed. Joint to sole applicants use Form D36A.

If your application is successful, then the court will issue you with a certificate called the Final Order which confirms that your marriage is dissolved and your divorce is finalised.

You are then free to remarry if you choose to do so.

You should keep your Final Order safe as you will need to produce it if you choose to remarry.

Summary

This guide is designed to help people see their way from start to finish through a simple, undisputed divorce. It does not pretend to solve all problems and issues that may arise during a divorce and if anything arises in your divorce that this guide does not answer then we recommend you seek specialist legal advice.

This guide does not cater for cases where there are issues regarding children nor cases involving complex financial matters.

We are specialists in all areas of Family Law, with a dedicated team of Divorce Lawyers. Please call us on 020 8492 2290 to speak to a member of our team to receive preliminary free legal advice and information on your family matter. This advice may be sufficient for you to continue to deal with your divorce or, you may decide that you wish to be represented or continue to receive advice and assistance and we will be happy to discuss the options we can offer you.

© Guile Nicholas Solicitors

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