DIVORCE IN ENGLAND AND WALES

Legal Requirements

Providing you have been married for more than one year, you can start divorce proceedings in any divorce County Court, or in the Principal Registry in London.

In order to instigate divorce proceedings you must first be able to show the court that the following two requirements are satisfied

  1. The court has jurisdiction to deal with your divorce. Whereas it is not necessarily important where you were married, it is important where you and/or your spouse normally live. This will determine where you and your spouse are domiciled.
  2. That you have reasons, or grounds for saying the marriage is at an end. To satisfy the Court it must be showed that the marriage has irretrievably broken down.

Proof that the marriage has irretrievably broken down will only be accepted by the Court if the divorce is based on one or more of the following facts

  • That your husband or wife as committed ADULTERY and that you find it intolerable to live with him or her
  • That your husband’s or wife’s BEHAVIOUR has been so UNREASONABLE that you can no longer be expected to live with them
  • That your husband or wife DESERTED you at least two years ago (Seldom used )
  • That you and your husband or wife have been SEPERATED for at least TWO YEARS and he or she CONSENTS to a divorce
  • That you and your husband or wife have been SEPERATED for at least FIVE YEARS

Once you have established which of the five facts is applicable to your circumstances and on which you intend to rely, you can begin to prepare the necessary documents to initiate divorce proceedings.

2. Documentary Requirements

The Divorce process has three distinct stages:

  • Stage 1 - Application for divorce
  • Stage 2 - Application for decree nisi
  • Stage 3 - Application for decree absolute

Separate documents are required at each of the three stages to be submitted to the county court.

Stage 1 – Application for Divorce

The Petition
This is your application for divorce. It sets out the details of your marriage, the current circumstances of you and your spouse, and of course the basis on which you are to petition for divorce. The court will require three copies of the petition.

Marriage Certificate
The court will require the original or a certified copy of the marriage certificate to be submitted with the petition. The court will not accept a photocopy. If the original marriage certificate has been lost or destroyed, a certified copy will need to be obtained.

Court Fees
You will probably need to pay a court fee in order to instigate the divorce process. The current fee to commence a divorce case is £410. However, your financial situation may mean you do not have to pay a fee. The court staff can provide you with a copy of the EX160A leaflet which gives a guide to applying for an exemption from paying the fees.

Stage 2 – Application for Decree Nisi

Directions for Trial
This is a standard form requesting the court to give direction for trial by first entering the divorce case in the so-called ‘special procedure’ list. This is the usual way of obtaining a decree in divorce. The form will need to be completed and submitted to the county court with the Affidavit in support of the Petition.

Affidavit in Support of the Petition
A different Affidavit is used depending on which of the five facts listed above your petition relies on. The wording of the Affidavit takes account of the fact relied on. The Affidavit essentially requires the contents of the petition to be reiterated. It also requires confirmation as to whether you and your spouse have resumed cohabitation and whether anything needs to be added or amended in the petition or statement of arrangements for the children if applicable. A copy of your spouse’s Acknowledgement of Service needs to be attached to the document and the signature acknowledged as being that of your spouse. The document must be sworn either before a Solicitor / Commissioner of Oaths or at your local County Court before being lodged with the county court.

Stage 3 – Application for Decree Absolute

Application for Decree Nisi to be made Absolute
The Decree Absolute may be applied for six weeks and one day after Decree Nisi is pronounced. This is achieved by lodging a notice or application with the County Court.