Guide to getting a divorce
Around 40 per cent of marriages will end in divorce, according to the Office of National Statistics. Nevertheless, divorce remains one of life’s most stressful experiences. If you find that your marriage is at an end, you may find this step-by-step guide useful. It walks you through the divorce process and tells you what you need to do at every stage.
Can I divorce?
In order to begin divorce proceedings, one spouse must apply for a divorce petition.
Divorce applications under Scottish law are different from those in England and Wales. They are subject to residency rules that can be complicated, so you should consult a solicitor. Broadly speaking, at least one spouse needs to be domiciled (i.e. have their permanent home) in the country whose laws you wish to divorce under.
How soon can I divorce?
You can’t divorce if you have been married for less than one year. However, it is still possible to arrange a judicial separation (on grounds similar to the grounds for divorce), or (under certain circumstances) to have the marriage annulled.
Even if you have been married for more than a year, a judicial separation may still be used as a way to slow down the divorce process and allow more time for mediation and reflection.
What are the grounds for divorce?
There are a limited number of valid reasons for divorce under UK law. One option is to establish that the other spouse is at fault, by showing that they have committed one of the following:
Desertion (for more than two years)
Another acceptable reason for divorce is separation of the spouses. Divorce can happen after two years’ separation with consent of the other spouse, or after five years without consent.
Your petition for divorce
The spouse who applies for divorce is called the petitioner. The other spouse is the respondent. To apply, the petitioner must send the following documents to your local divorce centre.
Form D8 (divorce petition)
Form D8A (statement of arrangements for the children) – if applicable
The marriage certificate
The divorce centre will charge a fee (currently £550) for starting the divorce proceedings.
Within a few days, the divorce centre will send Form D9H (notice of issue of petition) to both the petitioner and the respondent. The respondent (or their instructed solicitor) will also receive copies of Forms D8 and D8A (if applicable).
Responding to a divorce petition
If you are the respondent, then within seven days of receiving Form D9H you must send Form D10 (acknowledgement of service) to the divorce centre. On the form you must state whether or not you intend to defend the petition, whether you dispute any claims for costs, and whether you agree on the arrangements for the children.
If you intend to defend the divorce, then you must send your defence (known as your ‘Answer’) to the divorce centre within 29 days of receiving the petition. Otherwise, the petitioner can notify the divorce centre that you mean to defend the divorce.
If you are the petitioner and the respondent does not respond at all, you will have to use Form D89 (request for bailiff service) to ask the court bailiff to serve the divorce paperwork instead.
Applying for a decree nisi
If you are the petitioner, and your spouse (the respondent) does not choose to defend the divorce, you can apply for a decree nisi. This is the document that states the date on which your marriage will end, unless a good legal reason is presented not to grant a divorce.
You will need to submit form D84 (application for a decree nisi) with the help of your solicitor. You should also first read the guidance at Gov.uk.
Your decree nisi should be pronounced by around 5 weeks after your application. You don’t have to be present for this, as the divorce centre will send you and the respondent Form D29 (decree nisi) by post.
Applying for a decree absolute
The final step in your divorce proceedings is the decree absolute. This makes the decree nisi (which was conditional) final and binding.
You can apply for your decree absolute 6 weeks and 1 day after your decree nisi is pronounced, by submitting form D36 (notice of application for decree nisi to be made absolute). This should only take a few days to process, and then you will be sent Form D37 (decree absolute).
There may be circumstances in which you do not want to decree absolute to take effect as soon as this (for instance if the ancillary relief process has not concluded, meaning you might face financial difficulties). In this situation, talk to your solicitor.
Once the decree absolute is granted, you and your ex-spouse are legally divorced. However, divorce proceedings do not include financial settlements. The matter of ‘who gets what’ is handled in a separate process called ancillary relief.
Sharing out the marriage assets
When both spouses agree to a divorce, the divorce process itself is usually quite simple. However, disputes are more likely to arise over how the matrimonial assets (savings, family home etc.) are divided between you and your ex-spouse. This is the ancillary relief process.
Sometimes it is possible to achieve a clean break, meaning that after the division of the matrimonial assets, all financial relations between you and your spouse will cease. However, in many cases a clean break is not possible.
Key issues that can prevent a clean break include:
Unequal earning potential (e.g. if one spouse was the main or sole earner)
In such cases the court may issue a maintenance order, whereby one ex-spouse continues to make regular payments to the other. However, maintenance orders are usually time-limited, to allow for a clean break in the future.
What about the family home?
If you and your ex-spouse are joint owners of your matrimonial home, you both have the right to remain in the property unless the court issues an exclusion order. You should talk to your solicitor about the various ways to achieve an exclusion order.
Arrangements for the children in a divorce
Unless both parties in the divorce agree otherwise, the court will tend to assume that any young children from the marriage will stay with their mother in the family home. In such cases the whole property may be transferred to the ex-wife, while the ex-husband will receive other assets (e.g. the full value of his pensions) in a process called offsetting.
The ancillary relief process can be the most complex, stressful and costly part of a divorce, so the help of both a solicitor and a financial adviser is strongly recommended.
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