If you’ve decided that you want a divorce, your next question is going to be “how do I file for a divorce?”. If you want a divorce, what should you do next?
Find grounds for the divorce
To kick things off, you will need to have “grounds” for divorce; a reason. You can’t simply say that you don’t like someone. There has to be what is called legal grounds. You basically have to choose from one of the following reasons. In England and Wales, even though things are set to change in Autumn 2021 it usually boils down to one party blaming the other. Family solicitors will usually suggest that your ex is made aware of the reason you are giving, to pre-warn them, allowing things to be changed if need be. This is called a “draft petition”.
Remember that divorce petitions are not public records, so it can sometimes be useful to “dampen down” the reasons, for the sake of a more amicable divorce. You can get advice on this from family solicitors or other experts in The Hug Directory. The only people who will see the reasons will be legal representatives, the court and the couple themselves. So this is not an opportunity to air your dirty washing to the public.
You use the reasons in the Divorce Petition Form (D8) and you will also need to pay the court fees which are currently (November 2020) £550. You will provide the court with your original marriage certificate and it will need to be translated if it is not written in English.
Adultery is committed when one person has sexual intercourse with another person of the opposite sex. So, if your partner has sexual relations with someone of the same-sex – adultery cannot be used as a reason. Adultery can only take place within a marriage; the couple have to be married. If you are in a civil partnership and going through the process of a dissolution, you cannot use adultery.
If you are going to use adultery as grounds for divorce, you have to start divorce proceedings within 6 months of finding out. However, say you found out about adultery in June and 5 months had passed and then you found out about another act of adultery, the six months start again.
When you file for divorce, this can be used if one spouse has behaved in such a way that means that the other person could not be expected to live with them. This behaviour could include domestic abuse, an addiction to something such as drugs, alcohol or pornography or lack of emotional support through a difficult time. Using this reason would involve you blaming your spouse and giving examples of their bad behaviour, citing the impact it has had on you as a person and how it has affected you and your life.
Your partner must have left you for 2 years before you can use this as a reason for divorce and it can be quite difficult to prove as you have to prove that your partner left without any valid reason or your consent for a continuous period of 2 years. You can still claim for desertion if you have lived together for up to a total of 6 months in this period.
Desertion is rarely used as you have to prove that your spouse left without your agreement, without good reason and with the intent of ending the relationship. Nevertheless, if you can tick all the boxes, it’s there to be used. Proving that there was an intent to desert is the very tricky part and using unreasonable behaviour may be a far easier route to divorce, for example saying that they moved away with their job without agreeing it with you, together, as a couple.
Separated for at least two years
If you and your spouse have been living separate lives for more than two year and your spouse AGREES, this reason can be used when you file for divorce. You don’t necessarily have to have been living in separate properties either. There is a tick box on the divorce petition to say that you’ve had separate sleeping and domestic arrangements but have had to live under the same roof because of issues which could be financial constraints or looking after children. If this reason is used, the courts look very carefully at the living arrangements for the two year separation period. You can have had periods of living back together, but they must not add up to more than 6 months.
If you are able to use this as the grounds for divorce, it is good in that you don’t have to play the “blame-game” and cite bad behaviour. It can be useful to have a separation agreement drawn up at the beginning of a period of separation so that if you get to two years and decide to divorce, this can be put into a clean break or consent order, making it so much easier. It is wise to seek legal advice as it can be difficult to prove that you have been separated for two years and your ex may not want to sign the form. The settlement can also be a sticking point if one party wants to use the date of separation and the other the time of issuing the divorce petition. Think about someone starting what becomes a successful business just after separating.
Separated for at least 5 years
You must be separated for at least five years to use this as a reason for divorce and you do not need your spouses consent. If you have both been living separately but under the same roof, the court will scrutinise your living arrangements to decide whether you were “separate” in the eyes of the law. You may find yourself answering the court about matters such as where you slept in the house, the issues around food and eating and bill payments. Were they made separately?
Again, unreasonable behaviour may be more suitable. In the case of a 5 year separation your partner does not have to agree to the divorce. You do however have to provide an address for the court to send your spouse the divorce petition.
Filing the petition
This is the process of filing Form D8 with the court (giving the court the form and saying “I want a divorce) and is where you are asking the court for permission to divorce. You disclose details of your marriage and the reasons why you wish to end your marriage.
The acknowledgement of service
This involves the court sending your spouse (the respondent) an acknowledgement of service form which your spouse will normally have to respond to within 7 days. The process involves your husband or wife telling the court that they agree with the reasons for the divorce and will not defend the divorce. If they do want to defend, that’s another matter completely.
In the case of a spouse who is using 5 years separation as the grounds for divorce, it may be the case that a spouse cannot be located. The process can get more expensive when there is no address for an ex as you will have to try and find family and friends who may know their whereabouts and trawl social media to see if you can locate them.
You may also apply for a court order against a government department to divulge the address of your spouse if you believe that your ex is still living in the UK. Don’t panic if you can’t locate your ex as you can apply to dispense with service of the divorce petition if your spouse in no longer in the UK and cannot be reasonably found. You do however have to prove that you have tried to locate them and have been unsuccessful in your attempts. So in some cases, someone may not be aware that they are divorced from their spouse because they didn’t receive any paperwork.
For initial advice and support on how to file for divorce, if you are thinking about getting a divorce, take a look in The Hug Directory to find experts who can help.