Do I need a solicitor to get divorced in England and Wales?

Divorce is often a complex matter as there are can be years of finances, assets and affairs to untangle. Divorcing couples may also have childcare arrangements to consider. Although it is possible to get divorced without a solicitor, even in seemingly straightforward cases it is still advisable to contact a matrimonial lawyer at the earliest sign of separation in order to give you the best start. You are likely to have a lot of questions surrounding the separation and your assets and it is important to seek advice on the divorce process at as early stage as possible.

If I live in England or Wales but got married elsewhere, can I get divorced here?

You can still get divorced in England and Wales if you were married elsewhere, provided the English court has jurisdiction. We can advise you on jurisdiction and also help you consider whether or not it would be advantageous to file for divorce in a different jurisdiction (if you are entitled to), as different countries have different matrimonial laws. Before making any firm decisions about separation, you should seek independent legal advice, separate from your partner, to make sure you are protecting yourself.

What is a no-fault divorce?

The divorce laws changed in April 2022 and no-fault divorces are now in England and Wales. This means:

• You do not have the option of giving a reason for the breakdown of the marriage.
• Accusations of poor conduct during the marriage are no longer applicable.
• To start a divorce, you simply have to confirm that the marriage has irretrievably broken down.
• One person can apply for a divorce or the couple can apply together.
• It is no longer possible to contest a divorce. Assuming the court has jurisdiction, there are no grounds on which your ex-partner can refuse the divorce even if they feel there is some life left in the marriage.

Some of the wording previously used in the divorce process has been updated as part of the no-fault rules. The person applying for the divorce, formerly the petitioner, is now called the “Applicant,” the divorce petition is now known as the “Application”, the decree nisi is now called the “Conditional Order” and the decree absolute is now called the “Final Order.”

What is the divorce process?

The new system lays the ground for a more amicable divorce although it will not necessarily be a quicker divorce. This is because the rules have introduced a mandatory “cooling off” period for couples to think about their decision and make sure they are not acting in haste. Briefly, the process is:

• Establish whether you can apply for a divorce. You can do this if at least one of you is a resident of the UK and you have been married for more than 12 months.
• Start the process by filing a divorce application with the court, either just one of you or as a couple. You can do this online through Gov.UK or you can use a solicitor.
• Your partner has 14 days to acknowledge receipt of the divorce papers if you applied alone.
• There is a mandatory 20-week reflection period to decide whether you wish to proceed with the divorce.
• The Applicant(s) applies for the Conditional Order.
• The Court will issue a Certificate of Entitlement, confirming that the Court is satisfied that you are entitled to a divorce. The judge will then confirm the Conditional Order in court. You do not attend Court, nor does your solicitor if you are represented.
• There is a mandatory 43-day waiting period before applying for a Final Order.
• The marriage is dissolved once the Final Order is made.

What are the grounds for divorce in England and Wales?

There is only one ground for divorce in England and Wales: the irretrievable breakdown of the marriage. In order to prove that the ground has been met, you must establish one of the following five facts: adultery; unreasonable behaviour; desertion; two years’ separation (provided your spouse consents); and five years’ separation (no consent required).

Does it matter which party applies for divorce first?

Assuming that there are no jurisdiction issues, it is unlikely to matter which party applies for divorce.  That said, some people do prefer to be the petitioner and in being so, have more control over timings.  You can get in touch with a member of our team for some initial advice on what your options may be. You can also use our online tool which provides you with instant, personalised and complimentary advice. It records your information, reducing time and costs if you do decide to book an appointment.

How quickly will the divorce process take in total?

The timeframe for divorce varies greatly. If the parties are unrepresented they are able to use the court’s online service which is much quicker than the paper service solicitors are required to use. The online divorce process can take as little as two or three months. However, we generally advise clients to agree not to apply for Decree Absolute (the final stage in the divorce) until the finances have been resolved as it can result in the loss of certain benefits.

Do I need to be physically in England or Wales to start divorce proceedings?

No, you do not. It is important that you do instruct a family lawyer who will be able to advise you of divorce law in England and Wales. Our team is able to speak to you regardless of where you are based in the world.

How does divorce affect property and finances?

Finances are dealt with separately from the divorce. When you and your partner decide to end your marriage, you need to consider how your finances will be divided.

In many cases, couples agree to the division of assets between themselves with the help of their solicitors who then write it into a Financial Order. The Court will consider if your agreement is fair. If it is, a judge will seal the Order. Getting the court’s approval is important as, without it, your ex could still make a claim against your income and assets and vice versa.

Where an agreement cannot be reached, there are various options available to you. One is to apply to the Court. The Court has broad powers to make whatever order it believes will achieve a fair and equitable outcome, taking into account factors such as:

• You and your partner’s incomes and future earning capacity
• Financial needs, such as housing needs
• The standard of living you shared before the marriage breakdown
• Your age and the duration of the marriage (plus any period of prior settled cohabitation)
• The contributions made by each party, including looking after the home or children (contributions are generally regarded as of equal value)

What are the arrangements for the children?

Divorce can be extremely hard on children. It’s important to make sure that arrangements for the children are agreed upon with their best interests at heart, to make the transition as smooth for them as possible.

There are various things you will need to agree on when it comes to the children. These include:

• Where the children will live
• How much time they will spend with each parent
• What sort of contact each parent is entitled to have with their children, such as phone calls or visits
• Child maintenance payments
• Contact with other family members including grandparents

Parents know what is best for their children and the Court will usually accept any arrangements agreed upon between parents, provided they are reasonable and in the child’s best interests. If matters cannot be resolved by agreement [mediation et?], a Children and Family Court Advisory and Support Service (CAFCASS) officer will prepare a report setting out their recommendations for the resolution of the issue. The Court will then make a Child Arrangement Order based on what is best for the child.

What happens when I contact a divorce solicitor?

When you contact Collyer Bristow we will take the time to understand your unique circumstances, providing you with tailored advice on the best steps to take. Having a family lawyer on your side early means you have the best possible chance of achieving your desired outcome of the separation. Your solicitor will guide you through the entire divorce process, advising on the necessary court papers and costs along the way. Finances and children are treated separately from the divorce but we are of course able to provide you with advice on these aspects.

How do I keep my divorce private?

Going through a divorce is incredibly stressful and draining. The last thing you need is for your private details to be publicly known. Family cases are generally heard in private and there are strict rules of confidentiality in these proceedings. We have vast experience in handling family law matters and understand the sensitivity of keeping your affairs confidential.