8 things to know before you start divorce proceedings
This section answers the following 7 questions
- How long does the whole process take?
- Does the court have jurisdiction ?
- Should we apply jointly or individually?
- Do we have to apply online?
- Who pays the court fee?
- Can I make an urgent application for a divorce?
- Can I use a photocopy marriage certificate?
- What are the Rules on service?
1. How long does the divorce process take?
20 weeks from the date of issue to conditional order
You have to wait 20 weeks from the issue of the divorce application before a conditional order can be applied for.
The purpose of this 20 week period is to ‘provide a meaningful period’ of reflection and offer you the opportunity to either turn back if you both decide to OR, where the divorce is inevitable, work together in mediation or some other suitable dispute resolution process, to make financial and child arrangements for the future.
If you decide to work together to obtain your divorce, reach fair financial arrangements and child arrangements you should find all the information you need in this Divorce Manual for most situations.
An application can be made to shorten the 20 week time period (in exceptional circumstances such as in the very sad case of terminal illness. See urgent application paragraph below).
If the court is not satisfied that you can have a conditional order they can ask for further information or ask you to attend a court hearing.
This said, it is difficult to envisage when this is likely to happen given the simplicity of the law and process and the fact that a statement of irretrievable breakdown cannot be challenged.
6 weeks and 1 day from conditional order to final order
6 weeks and 1 day after the conditional order you and/or your former partner can give notice to the court for the Conditional order to be made final.
2. Does the court have the legal power (jurisdiction)?
The need for the court to have jurisdiction is explained in form D8- Section 5
There is no point whatsoever applying for a divorce if, for some reason, the court does not have the legal power (jurisdiction) to deal with your application. Your application will simply be rejected.
Remember that the lack of jurisdiction is one of the few cases for disputing a divorce application (see below)
To have jurisdiction at least one of the following or combination of the following applies
Habitual residence
If your life is mainly based in England or Wales including working, owning property, having children in school and your main family life taking place in England or Wales you can claim habitual residence.
Domiciled
This is usually the place you were born, regarded as your permanent home and to which you have close ties.
When you are born you acquire a domicile of origin. This is usually the country your father considered his permanent home if your parents were married or the country your mother considered her permanent home if your parents were not married or your father had died.
If you leave your domicile of origin and settle in another country as an adult, the new country may become your domicile of choice.
3. Should you apply for a divorce jointly or individually?
You are encouraged to apply jointly.
If you apply jointly you will be known as Applicant 1 and 2 rather than the Applicant and Respondent.
If you apply as the sole applicant you will be known as the Applicant and your spouse/civil partner as the Respondent.
Please note that you will not be able to change your application from a sole application to a joint application. (See section- Pitfalls)
Can I switch from being a joint applicant to a sole applicant?
If you start as joint applicants but find yourselves in a situation where you are unable to continue with it, perhaps because of a downturn in the relationship or the other person is not progressing the application, it is possible to switch the application from joint to sole.
You can only do this at the point you either apply for the conditional (form D84) or final order(form D36A)
On paper
If you are a joint applicant using the paper process and wish to proceed on a sole basis at the final order stage you must give the other party 14 days notice of your intention to give notice to the court that you wish the conditional order to be made final and you do this using form D11.
You can find these forms in the resources section to this chapter.
Online
If you are an online applicant follow the guidance on the online system.
4. Do you have to apply online?
Since the 6th April 2022 you can use the Government online divorce website to apply for your own divorce.
This is recommended although it is not available in certain situations such as
- Nullity proceedings
- Judicial separation proceedings
- Separation
- If the same solicitor is representing you both as joint applicants
Sole applications
If you prefer to make your own application rather than jointly with your former partner, sole applications can be made online OR on paper using the documents in our resources section.
Sole applicant and your solicitor represents you
Your solicitor can apply on your behalf but must use the online system.
Joint application and a solicitor represents one of you
If this is a joint application and one of you is represented the application must be made online by the solicitor
Joint application and a solicitor represents both of you
If this is a joint application and one solicitor is acting for both of your paper forms must be used.
The online system will ask for the same information that the paper forms in our resources section asks for.
5. Who pays the court fee?
Joint online applicants
If you are joint applicants you can agree between yourselves how you pay the fee although for online applications applicant 1 must pay the court fee. This might determine for you who is going to be applicant 1
Provide your email details and the court will email you details about how to pay or you can pay over the phone 10 days after you have submitted your application or you can post a cheque. The details are on form D8
Paper online applicants
For paper joint applications either applicant may insert their financial details on the court fee page.
Recommendation
It is quite common for you both to discuss, consider and decide in your first mediation session, among other things, whether you are going to apply jointly or not and if so who is going to be divorce applicant 1 and how the court fee is going to be paid for.
Can you get any help to pay the court fees?
Sole applicant
As a sole applicant you can apply for Help with Fees if you have little or no savings and either receive certain benefits or have a low income.
Joint applicant
As joint applicants can apply for Help with Fees if BOTH of you have little or no savings and either receive certain benefits or have a low income.
Please check online
Get help paying court and tribunal fees – GOV.UK (www.gov.uk)
6. Can you make an urgent application for a divorce?
In exceptional situations you can apply to shorten the period from application to conditional order using form D84 and the period from conditional order to final order using D36.
For example, this might be justified in the case of terminal illness.
In situations like this we recommend legal advice.
The following paper forms will need to be used which can be found in the resources section to this chapter
D11 Application Notice asking for permission to make the urgent application
D84 Application for Conditional order (urgent) OR
D36 Application for Final order (urgent)
Your reasons will need to be set out in a letter to the court alongside the application.
7. Marriage Certificate
Can you use a photocopy marriage certificate?
No, this must be an original or certified copy of your marriage/civil partnership certificate or similar document issued under the law in force in the country where the marriage or civil partnership registration took place (a photocopy is not enough).
If not in English, you must provide a certified translation from a certified translation service such as Lingo or Translation services 24
Marriage Certificate Translation – UK Document Translations (lingoservice.com)
Translate & Officially Certify Your Marriage Certificate – TS24 UK (translationservices24.com)
You will not automatically get your marriage certificate back from the court. You will need to apply for them to be returned.
If you cannot find your marriage certificate you should be able to get hold of a certified copy of your marriage certificate at this address
Order a birth, death, marriage or civil partnership certificate – GOV.UK (www.gov.uk)
The marriage certificate can be uploaded online or, if you experience difficulties with this, you can post or email this to the court.
If it is posted it must be the original and will not be automatically returned.8
8. What are the Rules about correct service of divorce proceedings?
Sole applications
The general rule is that the court will send the application to the Respondent but you can do if you request to do so but then you must comply with the rules for correct service (see below).
If you provide the court with an email address for the Respondent they will email your application to the Respondent at their ‘usual email’ address as well as send them a letter informing them that an application has been made and that a link to view the application has been sent to them by email.
If you only have an email address and not a postal address for the Respondent you will have to apply to the court on form D11 for alternative service by email alone
You can ask the court to send the application to a different address for the Respondent if Royal Mail cannot deliver it.
After two attempts the court will not try again.
If you wish to serve the application on the Respondent you must follow certain rules and steps within 28 days after the application has been issued which can be found in Rules 6.6A and Rule 6.41A.
You can apply to extend time under Rule 6.6B for ‘good reason’ and this can be made outside the 28 day time period. The court will consider whether the applicant has taken ‘reasonable steps’ and ‘acted promptly’
Please take into account the negative impact that a delay in informing the Respondent that a divorce application has been issued can have especially if you are hoping to resolve other matters such as the finances and child arrangements in mediation.
See the resources section for a copy of these Rules