The divorce process in four stages

Tue 9th Aug 2022

Karen Pritchard, Chartered Legal Executive in the Coodes Family team, explains the four stages a couple needs to go through to get divorced.

To make a divorce application, you must have been married for at least one year. The process is generally administrative and online and usually means that neither of you will need to go to court.

It is no longer possible to defend a divorce by saying that the marriage has not irretrievably broken down. It is possible to dispute the proceedings, but the grounds are limited to issues about the court’s jurisdiction to hear the case or about the validity or subsistence of the marriage. Disputed proceedings are rare.

The Application

The document that starts the proceedings is called an application. Divorce proceedings can be issued by one person (a sole application) or jointly by both parties. An application must be filed with the court using the HMCTS online system. Your original (or official copy) of your marriage certificate will be required.

The Response

When there is a sole application the court sends the application to the other party with an “Acknowledgement of Service” form. This needs to be returned to the court within 14 days of receiving the application and the respondent has to say they do not intend to dispute the divorce.

The application can be served by email but if this happens, it is also necessary to send notification by post. The application must be served on the respondent within 28 days after the date of issue of the application.

If the application is made jointly, the court will send a copy of the notice of proceedings to both parties and both applicants must acknowledge receipt of the notice of proceedings within 14 days of receiving it.

The Conditional Order

An application for the Conditional Order cannot be given to the court until 20 weeks have elapsed from the start of the proceedings. This is the first stage in the divorce. The application confirms that everything in your application is true and that you want to proceed with the divorce. The court will consider the application and issue a certificate telling you whether the Conditional Order will be made.

A Conditional Order means that the court has agreed that you are entitled to a divorce but has not yet made it final. The Orders are made in open court and although anyone can go to court to hear this, it is not necessary and usually people do not attend.

At any time after the Conditional Order is made, the court can make a binding Financial Order regarding your financial arrangements on divorce, this can be done by consent or as a result of separate financial Court Proceedings.

Final Order

Six weeks after the Conditional Order, the Final Divorce Order can be applied for. This is the Order that ends the marriage and was previously referred to as Decree Absolute.

With this you should discuss the specific circumstances of your case with your family lawyer and whether you should apply for the Final Order as soon as possible. In some cases, it may not be sensible to do so, for example, when financial arrangements are not yet settled. It is the applicant who usually applies for the Final Order.

If the respondent is keen to end the marriage however, and the applicant has not applied for the Final Order, then the respondent can ask the court for permission to do so after a certain period. The court will usually grant the application unless there are reasons not to do so, but in special circumstances it may delay the granting of a Final Order.

General Issues

  • Costs

The circumstances in which an order for costs will be appropriate are very limited. The grounds for opposing an application are limited to the issue of the court’s jurisdiction to hear a case or about the validity of the substance of the marriage.

This is a change to the position before 6th April 2022 when the court was asked to make any order for costs in favour of the successful petition in fault-based proceedings.

  • Children and finances

These proceedings are separate from the divorce itself. It does not matter who starts the divorce proceedings. We can ask the court to make orders about money and/or children if necessary, during the divorce.

If you are considering getting remarried however, you should take advice from a family lawyer before doing so, as this may affect your ability to make an application for a Financial Order.

For an explanation of the legal terminology, see our article ‘Demystifying divorce.

For more information or advice on divorce or any family matter, contact the Family Team at Coodes on 0800 328 3282.

Tue 9th Aug 2022

Karen Pritchard

Partner

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