Sign in
Courtesy navigation
Search
Divorce and separation: 27 FAQs
- What is the difference between divorce and separation, and which is best?
- What do I need to prove to get a divorce?
- Do we have to be living apart to get divorced or can we still be living in the same house?
- How long do I need to have been married before I can get divorced?
- Do we have to try mediation or counselling before I can apply for a divorce?
- Do I have to use a solicitor to get divorced?
- What information will my solicitor need to see?
- How does the divorce process start?
- Does it make any difference which of us starts the divorce proceedings?
- Does it make any difference whose fault the divorce is?
- How does the divorce process work?
- Do we have to go to court in person to get divorced?
- What happens if my spouse refuses to get divorced?
- If we change our minds, can we stop the divorce going through?
- How much is getting divorced likely to cost?
- Can either of us get legal aid to pay for our lawyers?
- How long does it take to get divorced?
- My spouse is being completely unreasonable during negotiations – is there anything I can do?
- What can I do to stop things turning nasty while we are negotiating the divorce?
- The divorce is my spouse’s fault and I want revenge – how can I make things as difficult and painful as possible?
- If I leave the family home while the divorce is being negotiated, will I still be able to get back in if I want to?
- If I leave the family home while the divorce is being negotiated, will this put me in a weaker negotiating position?
- Do we have to agree what will be happening to our children before the divorce can go through?
- Do we have to agree a financial settlement before the divorce can go through?
- When am I officially divorced and is there an official record of it?
- Who do I have to notify that I am divorced and what documents will they want to see?
- We are foreign nationals and got married overseas – can we get divorced in England?
1. What is the difference between divorce and separation, and which is best?
You can separate simply by walking out on your spouse, or by agreement. You do not need to make any formal legal arrangement, but it is a good idea to reach agreement on key issues such as who will look after any children and what the financial arrangements will be, and to set them down in a separation agreement or deed of separation.
You will also need to decide what happens to the family home. If you own it jointly with your spouse, it normally means that, if one of you dies, their share automatically goes to the other and, if you sell, you jointly own the proceeds.
If you are separating, you can get your solicitor to draft a document that creates two separate shares in the property, so that each spouse’s share will pass to their heirs if the other dies (which means that you can each decide who you leave your share to in your will), and you will each be entitled to a specific proportion of the proceeds if you sell.
You need to agree what share each of you will have. If you contributed equal sums when you bought the family home, and have contributed equally since, you’ll probably share 50:50. But if one of you has put more in, you can agree a different proportion. Then ask your solicitor to draw up the document.
If one of you later decides you want to divorce on grounds of separation (see 2), it doesn’t matter whether you have separated formally or informally.
The main terms of a divorce can also be negotiated between you, but a divorce also involves the court. This has several important differences:
- You can only get divorced if you can satisfy the court that the marriage has broken down irretrievably (see 2).
- Once you are divorced, the marriage is over, whereas separation can be temporary.
- The terms of a divorce can be ratified by the court, which means that it is less likely that either of you will be able to change them in future (though there are exceptions, largely in relation to looking after the needs of any children).
Judicial separation is a third option, although it is rare. You remain married, but you ask the court to recognise your separation formally. This means you can apply to the court for certain orders dealing with financial and property issues, as in divorce proceedings. The process and costs are similar to a divorce, and it is often used as an alternative where one spouse has a religious or strong moral objection to divorce.
The best choice for you will depend on the circumstances. If you are not sure that the marriage has completely broken down, a separation is the better option. By contrast, a divorce gives you more certainty if you want to end the relationship and put your financial and family arrangements in order. If you want to remarry, you will need to get a divorce.
2. What do I need to prove to get a divorce?
You need to show that the marriage has irretrievably broken down. You do this by establishing any one of the following:
- adultery
- unreasonable behaviour
- desertion (for at least two years)
- two years’ separation and agreement from both spouses to the divorce
- five years’ separation
Incompatibility or 'irreconcilable differences' are not acceptable grounds for divorce. However, in these circumstances it may be possible to establish unreasonable behaviour, eg by failing to adequately respond to a spouse’s emotional needs.
3. Do we have to be living apart to get divorced or can we still be living in the same house?
If you are getting divorced on the basis of adultery or unreasonable behaviour, you can be living together in the same house. However, if you continue living together for more than six months after finding out about the (most recent) incidence of adultery or unreasonable behaviour, you are unlikely to be able to use it as the basis for a divorce.
If you are getting divorced on the basis of desertion, clearly one spouse must have left the home.
If you are getting divorced on the basis of separation, you must have been living separately. It is possible to do this while remaining in the same house, as long as you do not continue to live as a couple: for example, you should be sleeping separately and each doing your own household chores. In practice, though, one spouse usually moves out when a couple separate.
4. How long do I need to have been married before I can get divorced?
You must have been married for at least one year before you can get divorced.
If your marriage breaks down before you have been married for a year, you may want to separate in the meantime, and to agree issues such as financial arrangements and who will look after any children (see 1 and 2).
5. Do we have to try mediation or counselling before I can apply for a divorce?
You are not legally required to try mediation or counselling, but they can have advantages.
Counselling services tend to focus on the emotional side of the break up, and can be particularly useful if one partner wants to get divorced but the other does not. By helping you to understand each other’s feelings, counselling may take some of the hostility out of the break-up, making it easier to negotiate an agreement. In some cases, by identifying the underlying problems counselling may encourage you both to give the marriage a second chance.
Mediation involves a skilled mediator helping you and your spouse to negotiate an agreement on issues such as financial arrangements and childcare. A skilled mediator can help you to work together to reach an agreement that you both feel is fair. This may provide a less confrontational approach than communicating through your solicitors from the outset, and can help to reduce your costs.
Whichever approach you take, you should still consult your solicitor before reaching any final agreement.
6. Do I have to use a solicitor to get divorced?
If the divorce involves children or any significant amount of money or other assets, you are strongly advised to use a solicitor. Your solicitor can:
- advise you on what your rights are and what would be a reasonable financial settlement
- help you negotiate agreement on financial arrangements and how any children will be looked after
- make sure that court documents are correctly completed and filed on time
Although your solicitor can advise you, it’s still up to you to choose how to use the solicitor. For example, you and your spouse might try to reach a preliminary agreement between yourselves or use a mediation service (see 5).
As a solicitor cannot act for both spouses, you should each have your own solicitor.
7. What information will my solicitor need to see?
Your solicitor needs to understand the background to the divorce, what financial assets are involved, and whether there are any children. The information you provide should include:
- On what basis you are planning to get divorced (eg adultery, unreasonable behaviour or separation – see 2).
- Which of you will be applying for the divorce (see 9) and whether you have both agreed that you should divorce.
- What you and your spouse’s major assets are, such as savings, pensions, houses etc.
- What you and your spouse’s income and outgoings are.
- Details of any dependent children (under the age of 18, still in full time education, or having special needs).
The more information you can provide, the easier it is for your solicitor to understand the circumstances and to advise you. Your solicitor can ask your spouse’s solicitor to provide details of any important information you cannot provide, but this will tend to increase delays and costs.
At the same time as providing your solicitor with this background information, you should also let your solicitor know what your major objectives are: for example, ensuring that the children stay with you (or that you have reasonable contact with them), staying in the family home and so on.
Separately, if you are not already known to the solicitor, you will need to bring evidence of your identity – for example, your passport and latest bank statement.
8. How does the divorce process start?
The divorce process can involve up to three separate elements:
- The divorce itself – ie the ending of the marriage.
- Agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable.
- Agreement on the arrangements for looking after any dependent children.
At the first meeting, your solicitor is required by a code called the Family Law Protocol to consider a number of issues, and may need to discuss some of them with you. These include the prospects of reconciliation, possible referral to a family dispute resolution service, whether there is a danger of children being taken abroad, the possibility that there has been abuse, whether there is a need to limit access to joint bank accounts and credit cards, the need to register rights of occupation of the family home at the Land Registry, and many more.
The process of divorce itself starts when the 'petitioner' - either you or your spouse - files a divorce petition with the court. The petitioner’s solicitor normally completes the required documents.
If you have dependent children, if possible you should agree – at least in broad terms – how they will be looked after before the divorce petition is filed. Otherwise, the court may have to become involved in determining the arrangements for the children. For more information, see divorce and separation – children: 21 FAQs.
The financial arrangements can be agreed separately at any time – before you start divorce proceedings, at the same time, or after the divorce itself has been finalised – though the financial arrangements cannot be finalised until after the decree nisi (see 10). For more information, see divorce and separation – financial matters: 30 FAQs.
9. Does it make any difference which of us starts the divorce proceedings?
It should make no difference to the final outcome which one of you starts the proceedings.
In practice, there may be circumstances that make one or other spouse want to be the 'petitioner' rather than the 'respondent':
- If only one spouse wants the divorce, he or she will be the one who files for divorce. More broadly, the petitioner’s solicitor tends to drive the divorce process – for example, chasing up the respondent’s solicitor if documents have not been returned on time.
- If the divorce is on the basis of adultery, unreasonable behaviour or desertion, the aggrieved party must petition for the divorce.
- A spouse who has religious objections to divorce may prefer to be the respondent.
10. Does it make any difference whose fault the divorce is?
In general, it makes no difference to the outcome either in terms of the financial agreement or the arrangements for looking after the children. However, where one spouse’s has been guilty of seriously unreasonable behaviour – eg violence towards the other spouse – this may have consequences.
11. How does the divorce process work?
Once the 'petitioner' (see 9) has filed for divorce, a copy of the documents is sent to the 'respondent'. The respondent is also asked to return an acknowledgement of service, confirming that the documents have been received and stating whether he or she intends to defend the divorce.
Provided that the divorce is not being defended, the petitioner then swears an affidavit confirming that all the details on the documents are true. A judge then considers the paperwork and decides whether the facts relied upon in the petition have been made out and show that the marriage has broken down irretrievably. In particular, the judge will want to be sure that satisfactory arrangements will be made for any dependent children.
Provided that you have reached a reasonable agreement, the judge should set a date when a 'decree nisi' will be given. Six weeks after that, the petitioner can apply for the decree nisi to be made absolute. Once the decree absolute has been granted, you are divorced (and free to remarry should you wish).
12. Do we have to go to court in person to get divorced?
If you and your spouse both agree to get divorced, and can reach a reasonable agreement between yourselves on finances and looking after any dependent children, you should be able to get divorced without going to court in person.
13. What happens if my spouse refuses to get divorced?
Your spouse can defend a divorce by claiming that the facts relied on in the petition are not true: for example, that he or she did not commit adultery, or that you have not in fact been separated for five years. This could mean that you have to delay your divorce, unless you can petition for divorce on a different basis: for example, demonstrating that the marriage has irretrievably broken down, and that your spouse’s behaviour has been unreasonable (see 2). At the worst, this might mean that you have to separate from your spouse for five years before you can get divorced.
In fact, defending a divorce in this way is not common. What is more common is for an aggrieved spouse to make the process of getting divorced more difficult, expensive and drawn out. For example:
- Your spouse may fail to respond to court documents, delaying the process and increasing your costs.
- Your spouse may state that he or she intends to defend the divorce, which delays proceedings even if ultimately the divorce is not defended.
- Negotiations on childcare and financial arrangements can be drawn out, particularly if every point has to be argued out through your solicitors.
- Your spouse may ask the court to intervene in deciding financial and childcare arrangements. In some cases, it may not be possible to finalise the divorce until these have been agreed.
14. If we change our minds, can we stop the divorce going through?
In the eyes of the law you are still married up until the moment when the decree absolute is pronounced, finalising the divorce. The petitioner can stop the divorce proceedings at any point prior to that.
15. How much is getting divorced likely to cost?
The divorce process can involve up to three separate elements:
- The divorce itself – ie the ending of the marriage.
- Agreement on the financial arrangements, such as how the assets will be divided and whether any maintenance will be payable.
- Agreement on the arrangements for looking after any dependent children.
The costs of the divorce itself include court fees (although it may be possible to obtain exemption from these fees if you are on a low income) and your solicitors’ charges. In a straightforward case where the divorce is not contested, the solicitors’ charges are likely to be in the region of £750 plus court fees and VAT. You can negotiate how these costs are shared between the two of you as part of any financial settlement.
In addition, your solicitor will advise you on negotiating financial terms and arrangements for any children. The more involvement your solicitors have in such negotiations, the more those additional costs will increase. If you cannot negotiate agreement yourselves, and have to ask the court to make rulings, costs will rise further. Protracted disputes can result in very substantial costs.
It is not therefore possible to state in general terms how much these costs are likely to be as they will depend on the circumstances of the case. However, your solicitor will give you an indication of the likely costs once the circumstances are known and may be able to offer a fixed-price service if the divorce is likely to be straightforward.
16. Can either of us get legal aid to pay for our lawyers?
Save for a small number of cases, for example where domestic violence has been a significant feature, legal aid is not available for divorce and family cases. For more information visit www.gov.uk/legal-aid.
17. How long does it take to get divorced?
A relatively straightforward divorce typically takes around six to eight months, provided that you both deal with court papers promptly. It may be possible to speed this process up – for example, if you want to get remarried as soon as possible – though the costs will increase.
In practice, negotiations over financial arrangements can take longer than this. However, it is usually possible to get divorced before a financial agreement has been finalised – although your solicitor will advise you when this is not advisable. For more information, see divorce and separation – financial matters: 30 FAQs.
18. My spouse is being completely unreasonable during negotiations – is there anything I can do?
If you are still on speaking terms, it’s important to try to remain calm and sympathetic. If you can, you should try to make sure that your spouse realises that the longer negotiations continue, the higher the costs – leaving less for either of you. If you have children, bitter negotiations will also impact on them.
Although your spouse may be being unreasonable, you should try to reach agreement without involving the court (and added court costs). An experienced solicitor can advise you if the negotiations are going so badly that going to court would be a more cost-effective route.
If you do have to apply to the court, it will set a court-driven timetable – the possibility of your doing so may help your spouse to focus on the issue.
19. What can I do to stop things turning nasty while we are negotiating the divorce?
Unsurprisingly, divorce negotiations often become adversarial, particularly if one spouse feels wronged or betrayed. If you are instigating the divorce – for example, because you have fallen in love with someone else – you may want to consider some form of counselling service. Even if you have made up your mind to get divorced, this – and the passage of time – can help your spouse to come to terms with what is happening.
Similarly, it is a good idea to try to negotiate a preliminary agreement between you on how finances will be dealt with, and the arrangements for any children. You may want to investigate using some form of mediation to help with this. Simply handing things over to your solicitors before you have agreed anything can increase the likelihood that negotiations will be difficult.
As far as possible, you should consider discussing what is going to happen next with your spouse, and perhaps negotiating the wording of any documents you are going to file with the court: for example, if you are going to file a petition setting out details of unreasonable behaviour.
20. The divorce is my spouse’s fault and I want revenge – how can I make things as difficult and painful as possible?
Divorce proceedings are generally traumatic and expensive enough without trying to make them worse. A responsible solicitor will not deliberately aggravate what is already a difficult situation. Making things difficult can also result in costs out of all proportion to the financial assets being involved, and may distress you – and any children – as much as your spouse.
You should be aware that if your unreasonable behaviour results in increased court costs and legal fees, the court could require you to pay both your own and your spouse’s costs.
21. If I leave the family home while the divorce is being negotiated, will I still be able to get back in if I want to?
While you remain married, the family home is a matrimonial asset and you are entitled to enter it.
Of course, there could be practical difficulties if, for example, your spouse decides to change the locks. So it makes sense to make sure you take any important documents, clothing and so on with you if you leave.
22. If I leave the family home while the divorce is being negotiated, will this put me in a weaker negotiating position?
Leaving the home should not prejudice the results of any final settlement.
It could, however, put you in a weaker negotiating position if it undermines your financial situation: for example, if you have difficulty paying the rent in your new accommodation and therefore want to negotiate the sale of the house as soon as possible.
23. Do we have to agree what will be happening to our children before the divorce can go through?
The court will need to be satisfied that suitable arrangements will be made in the children’s interests, but this does not necessarily mean that a final agreement has be reached before you can be divorced.
For more information, see divorce and separation – children: 21 FAQs.
24. Do we have to agree a financial settlement before the divorce can go through?
No. However, it is usually advisable for agreement to be reached on financial issues and for an order to be made dealing with these issues before the decree absolute (the order finally ending your marriage) is made. Such important entitlements as pension rights can be lost in certain circumstances once the decree absolute is granted.
25. When am I officially divorced and is there an official record of it?
You are officially divorced once the decree absolute is granted. The grant of the decree is officially recorded (in the court where the divorce was granted, and in the Principal Registry of the Family Division of the courts, in London), and you are each sent a copy.
26. Who do I have to notify that I am divorced and what documents will they want to see?
You need to notify anyone who needs to know about your marital status. For example:
- You should notify your employer, particularly if you have any health benefits, pension scheme or other employment related benefits which may be affected.
- If you are receiving benefits, you should notify the Department for Work and Pensions. (In fact, you may need to notify them earlier if you separate, as this can affect some benefits.)
- If you have joint arrangements – such as joint bank accounts or memberships – you should inform the organisation concerned. (Again, you may have already taken steps such as cancelling any joint credit cards.)
- A woman who wishes to revert to her maiden name (or a previous married name) should notify organisations such as banks and government departments.
- You should conduct a financial audit to ensure any insurance or other policies have the correct beneficiaries
- You should consider making an up to date will if you have not already done so
A copy of the decree absolute (or in some cases, the original certificate) is generally all the documentary evidence that you need to provide.
27. We are foreign nationals and got married overseas – can we get divorced in England?
You can get divorced in England provided that at least one of you has been habitually resident in England for the year leading up to the date when you file for divorce.
You can also get divorced in England if one or both of you are 'domiciled' in England, even if you are not resident here. For example, an English expatriate working overseas will usually continue to be domiciled in England if he or she intends to return here rather than emigrating permanently.
It is important to be aware that you or your spouse may be entitled to file for divorce in another country – such as your home country – as well. There may be advantages to one or other of you for the divorce to be handled in a particular country, so you should take early advice.
Popular content on divorce and separation:
- Divorce and separation – financial issues: 30 FAQs
- Divorce and separation – children: 21 FAQs
- Family mediation
Find more articles on family law in the Resources box on the right.
Follow us on:
Law Donut
Legal resources for you and your business - employment law, personal law and more | Law Donut
Copyright © 2009-2013
