Divorce, Dissolution and Separation

Divorce, Dissolution and Separation – How to end the relationship

If you are considering bringing your marriage / civil-partnership to an end, or if you have you received notice that your partner has already started, or plans to start, divorce / dissolution proceedings, what can you do? 

Can I apply for a divorce / dissolution

Divorce is the process of formally ending your marriage and changing the legal status of your relationship. You can only apply for a divorce if you have been married to your spouse for more than 1 year, the relationship has broken down irretrievably, and you can demonstrate that the divorce process should take place in England and Wales. 

If you have entered into a civil partnership, rather than marriage, the same procedure applies with the only difference being that the court refer to the process as a dissolution rather than a divorce. 

How do I get a divorce / dissolution?

Parties to a marriage / civil partnership must be able to demonstrate that their relationship has broken down irretrievably. There is no requirement to blame the other party and, indeed, whilst historically you could do so this is no longer possible. 

If you are considering ending the relationship you can apply for a divorce / dissolution of the civil partnership by making an application to the family court. The application can be made on your own, or together with your spouse (as joint-applicants). 

The process for the divorce contains the following key steps:-

  1. Application for divorce / dissolution of civil partnership
  1. Confirm service of the application upon your spouse (if not joint-applicants)
  1. Apply for a condition order
  1. Apply for a final order

Can the divorce / dissolution be defended?

Applications for divorce / dissolution can still be defended, although only on very limited grounds. It will not be possible to defend the claim that the marriage has broken down irretrievably, as a statement to this effect will always be accepted by the court. However, a defence could succeed if:-

  1. The respondent can show that the process has already begun in another country (outside of England and Wales), or that the applicant is not entitled to start the process in this country;
  1. The respondent can show that you have not been married for the minimum period of time; 
  1. The respondent applies for nullification of the marriage / civil partnership (i.e. they ask the court to treat the marriage as though it had never taken place).

Please also note that, if you apply for a divorce with your spouse (as joint-applicants), you cannot apply for the conditional order (see above) unless you have both confirmed, after filing the application, that you still wish to do so. Therefore, if your spouse changes their mind, it can delay the proceedings and you may have to withdraw the application and start afresh.

Finally, the respondent can ask the court not to grant the ‘final order’ if important matters (i.e. financial arrangements) have not been resolved beforehand.

How long will it take?

The process will take at least 6 months with the following ‘waiting periods’ required by law:-

  1. You must wait 20 weeks, from the start of proceedings, before you can apply for a conditional order; and
  2. You must wait 6 weeks and 1 day, from the condition order, before you can apply for a final order. 

It is noted that these are ‘minimum’ waiting periods and the total time to complete the process is likely to be longer. Furthermore, if there are financial arrangements outstanding, you may have to wait until these issues are resolved before  a final order is granted by the court. 

Important other matters to consider

Once the Final Order has been pronounced, you will no longer be each other’s next of kin and will, therefore, lose all automatic inheritance and pension rights against your estranged partner. It is, therefore, almost always essential to ensure that the financial order had been made prior to the granting of the Final Order. 

In addition, if as a respondent in divorce, you remarry after the granting of the Final Order, you will lose the right to make an application under the Matrimonial Causes Act for a resolution of your financial affairs. 

Further, if you were to die prior to the granting of the Final Order, then your estranged partner will, unless there is a Will made to the contrary, likely inherit all your assets. You may wish to give serious consideration to the making of a Will to prevent this from happening in this unfortunate event. Please note that a property owned as joint tenants (as in practice most couples own) will not form part of your estate on death and, regardless of any estrangement or Final Order, pass to the survivor automatically. 

You may also wish to consider, therefore, if you own your home or any other properties as joint tenants, to formally end the joint tenancy at the same time as making a will, so that your cystalised half share of the house will pass under your will rather than by survivorship.

You should also be aware that in view of your marriage or civil partnership, that your credit rating will inevitably be linked to that of your spouse or civil partner on the data held by credit reference agencies. These links will remain on record until you contact the agencies with evidence of the separation confirming that you are no longer financially connected.  You would be advised therefore, to contact the main credit agencies, Call Credit, Equifax and Experian.