Everything You Need to Know Before Getting A Divorce

If you are considering or going through a divorce, you may feel overwhelmed by the number of questions you have. Divorce can be complex, and everyone’s experience will be different. It can be hard to know exactly what to expect or what steps you should take.

Here we provide the answers to some of the most common frequently asked questions. For a complete list of our FAQs, see here.

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1. Can I get divorced in England & Wales?

In order to divorce in England and Wales, there are certain conditions you must meet, namely:

• You have been married for at least 12 months
• Your marriage is legally recognised in England and Wales
• Your marriage has irretrievably broken down

Furthermore, there are additional jurisdictional criteria which must be met to establish that the English and Welsh courts are able to deal with your application for divorce, such as:

• Both you and your spouse are habitually resident in England and Wales
• Both of you were habitual residents in England and Wales, and one of you still lives here
• Your spouse is habitually resident in England and Wales
• You have lived in England and Wales for at least 12 months
• You have lived in England and Wales for at least 6 months, and are also domiciled here
• Both you and your spouse are domiciled in England and Wales
• You or your spouse is domiciled in England and Wales

2. How can i start divorce proceedings

Initiating divorce proceedings is very simple – applications can be made by post or online via the government website.

To send your application by post, you must complete a form D8 (which can be downloaded via the government website). You must then send a copy of the form to the following address:

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

If you instruct a solicitor, they will make this application on your behalf.

3. On what grounds can i get a divorce in england & Wales?

In April 2022, no-fault divorce came into effect in England and Wales following the Divorce, Dissolution and Separation Act 2020. This means that there is no requirement to assign fault or blame to seek a divorce - hence the name. The only ground for divorce is the irretrievable breakdown of the relationship. No evidence is required, it just needs to be confirmed by one party.

This has significantly simplified the process and it is hoped that this will remove some of the animosity between parties, for their benefit and the benefit of any children, as well as reduce the costs associated with divorce. Previously, parties had to cite one of five grounds to demonstrate the irretrievable breakdown of the marriage:

• Adultery
• Unreasonable behaviour
• Separation for two years with consent
• Separation for five years without consent
• Desertion for two years

4. Can my spouse contest the divorce?

As discussed above, in order to apply for divorce, only one party needs to confirm that the relationship has irretrievably broken down. This means that your spouse cannot contest your application for divorce simply because they want to remain married.

Now, a divorce may only be contested on two technical, legal grounds:

• If the legal validity of the marriage is disputed
• If the English and Welsh courts’ jurisdiction is disputed

5. How long does it take to get divorced?

It normally takes at least 7 months to get divorced. It will often take longer if there are complicated issues to address or if agreeing a financial settlement is difficult.

Once an application for divorce has been made, parties must wait 20 weeks before progressing to the next stage, which is applying for a Conditional Order (previously called a ‘decree nisi’).

The Conditional Order confirms that the family court does not see a reason why the parties cannot divorce. Once this has been made, parties must then wait 43 days before applying for a Final Order (previously called a ‘decree absolute’), which legally ends the marriage and divorces the parties.

6. How are assets divided in divorce?

There are various principles and factors which affects how the family court will divide a couple’s assets upon divorce.

In England and Wales, marriage is seen as a partnership of equals. Therefore, the court’s starting point is to divide matrimonial assets – those accumulated by either party over the course of the marriage – equally. Non-matrimonial assets, which are those considered to come from a source outside of the marriage, such as inherited or gifted assets, as well as those acquired prior to the marriage or post-separation, will generally be kept separate and not shared. 

Where a couple share children, the best interests and welfare of the children will be the family court’s primary consideration. The court will want to ensure that there is adequate financial provision for the child, considering their housing needs and other financial support they may require.

Following this, the court will consider what are called ‘Section 25 factors’:

• The parties’ income, earning capacity, and financial resources 
• The parties’ financial needs, obligations and responsibilities 
• The standard of living enjoyed by the parties during the marriage 
• The age of the parties and the duration of the marriage 
• Any physical or mental disabilities of the parties 
• The parties’ contributions 
• The parties’ conduct 
• Any benefits which may be lost to either of the parties due to the dissolution of the marriage 

7. Who gets ‘custody’ of the children in divorce?

First, it is important to note that the term ‘custody’ is no longer used by the family courts. Although this phrase is still commonly used, the court has moved away from this terminology to reflect that both parents have an important role to play in their children’s lives and neither can ‘win’ by ‘getting custody’.

Instead, the court refers to ‘child arrangements’. This essentially covers who the child should live with and how often the child should see each parent. Other issues, such as whether a parent can relocate with the child, can also be addressed.

If parents are unable to come to an agreement on these issues themselves, they can apply to the court for a child arrangement order. To learn more about child arrangements, read our guide here.