Divorce proceedings Q&As
Q. Does a divorce final order bring your financial claims to an end?
We would like to dispel one common myth.
Getting divorced (bringing the marriage to an end) DOES NOT bring your future financial claims against each other to an end.
For this you will need a financial consent order made by the Judge.
See paragraph- dividing your money and property and chapter 9 of this Manual-How to reach your own financial agreements in 5 stages.
Q. Can you challenge a statement of irretrievable breakdown if you reconcile after the conditional order (Decree Nisi)?
The law tells the court that it must accept a statement of irretrievable breakdown which may, on occasions, not be true.
What if you reconcile for more than 12 months (or time has simply passed by) after the conditional divorce order and one of you now wants to give the other person notice of their intention to apply for a final order?
If so, the person applying to the court for a final order must explain in writing to the court why the application was not made earlier and nothing more!
So, at the moment, there is no indication in the new divorce rules as to what the court is looking for if there has been a 12 month delay or more.
Q. Dividing your money and property (D8 question 8 and D10 question 7)
D8 Question 8- The divorce application (paper)
If you are in mediation with the intended aim of reaching a financial agreement, which you will want the court to make into a binding court order (with your agreement), you must answer YES to section 8.1.
For help to reach your own fair financial settlement as cost effectively as possibly you may want to have a look at the chapters 8 and 9 of this Manual:
How to reach your financial agreements- 5 stages
How to reach your own maintenance agreements in 5 stages
We also recommend that you read pages27-29 of the AdviceNow guide which sets out the types of financial orders that can be made.
The AdviceNow guide recommends that you answer YES to section 8 (formerly section 10 in the old divorce petition).
Answering yes to section 8 does not commit you to making a financial application now or in the future for the court to deal with this but protects your ability to do so should you choose to if, for example, mediation does not succeed.
If you answer yes to question 8 the court will not take any action unless and until you or the Respondent complete a separate application form and pay another court fee when you come to apply for your mediated financial agreement to be made binding by way of a consent order.
If you and your former partner have reached a mediated financial settlement/outcome and want the Judge to make this binding you will have to apply for a financial order to be made, by consent.
If you want the court to decide the financial outcome because mediation has failed or is not suitable, you or the Respondent can apply to the court to decide the issues.
This is of course a much longer, more costly and divisive process and not the subject of this Manual.
Please be aware that if you answer ‘No’ to section 8 form D8 of the divorce application you will still be entitled to apply to the court for a financial order but not after you REMARRY or form another civil partnership.
If you answer ‘No’ and remarry before making a financial application, you will be barred from doing so.
We recommend that you take legal advice if your intention is to remarry and you do not yet have a final financial order in place.
D10 Question 7- The Response
If you are the respondent to the application and in the process of completing your form D10 question 7 asks whether you intend to ask the court to delay the divorce or dissolution until it is satisfied with your financial situation.
If you do you will need to complete a separate form and ensure that the court receives it before the application for the final divorce order.
When making its decision the court will take into account all the circumstances and your financial position should your spouse/civil partner die first.
The court may not delay the divorce if it is satisfied that your spouse/civil partner will make appropriate financial provision for you.
Q. What if you remarry without a financial consent order in place?
If you wish to remarry/form a civil partnership after you receive your final divorce order (formerly Decree Absolute) and do so without having obtained a financial consent order you may be barred from making a financial application (see above).
A completely separate financial process (separate from the process of getting a divorce) is necessary to obtain a binding financial outcome for yourselves, hopefully by agreement/consent and not through the courts!
Again, in most cases this is not complicated and need not cost thousands of pounds. You can do this over a few sessions of mediation.
This is covered in much great detail later in Part 3 of this Manual, the heart of the financial process.
Q. Can you get a binding financial consent order without divorce proceeding?
No- There are two processes for getting a divorce and obtaining a binding financial order but linked by the fact that you will need a conditional order of divorce (formerly a Decree Nisi) before the Judge has the legal power or jurisdiction to consider you application for binding financial order, hopefully by consent, without you ever needing to go to court.
Q. What if I want to dispute the divorce?
There is very limited opportunity to dispute an application for divorce which we set out in the Q&A section in this chapter.
In sole applications, the Respondent can dispute the application in limited circumstances. This does not include disputing whether the marriage has broken down because no evidence is required.
They can only dispute the divorce application because, for example
- They dispute that the court of England and Wales has jurisdiction because, for example, neither party lives in or has any connection with England and Wales
- They dispute the validity of the marriage because, for example, the parties have not entered into a legally valid marriage
- The marriage or civil partnership has already legally ended. For example, if the marriage has already been brought to an end in proceedings outside England and Wales
It may also be possible to challenge divorce proceedings for reasons such as fraud and failure to comply with the correct procedure.
Q. 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 6.6A or 6.41A.
See the resources section for a copy of these Rules
Q. What are Nullity proceedings?
If you believe that the marriage is not valid and wish to apply for the marriage to be declared null and void you must make an application in the usual way and follow the process of apply for a conditional and final order
In these circumstances you are recommended to take legal advice
Q. Can I withdraw a divorce application?
Yes
An application to withdraw a divorce application can be made on form D11 and sent to the court.
This can be done at any time before service of the application on the Respondent by giving the court notice in writing Rule 7.6.
If it is a joint application both applicants need to complete this form whether it is an online or paper application.
Q. What if I have changed my name since the marriage
You must send the court a Change of Name Deed or otherwise explain why your name has changed