Divorce process explained by a family lawyer

Getting divorced is never an easy process. It can be hard to make the decision to end your marriage, and even after that, you have to deal with lawyers and all the paperwork that comes with getting divorced.

But as of 6 April 2022, the divorce laws in England and Wales have been given an overhaul which will hopefully make the process slightly less painful. The Divorce, Dissolution and Separation Act means that a no-fault divorce is now the default and only option. Previously, one person had to blame the other person, citing adultery, unreasonable behaviour or desertion. Alternatively, the couple had to live separately for two years.

The new legislation was “long overdue”, says Emma Hatley, Partner, Divorce and Family at Stewarts. She explains why: “It is a game changer for couples. By taking some of the heat out of the divorce process at the outset, it is hoped it will now be easier for parties to focus more on what really matters, in particular, the resolution of the finances and agreeing arrangements for any children of the family.”

Hatley says that, generally, January is a particularly busy time for people filing for divorce, with the first working Monday of January, commonly referred to as “Divorce Day”. But this year, some people waited until April when the new legislation came into force, which created a “brief initial spike”. Data from the HM Courts & Tribunals Service shows that around 3,000 divorce requests were made in the week following the law reforms. This was up 50% from the weekly average, which last year was just over 2,000.

What is the Divorce, Dissolution and Separation Act?

The Divorce, Dissolution and Separation Act came into force on 6 April 2022, but how exactly has it changed things? “The new law enables couples to make a joint application for divorce on mutual terms, and initiate divorce proceedings without needing to cite ‘unreasonable behaviour’ or make inflammatory accusations about the other’s conduct,” explains Hatley. It is also no longer possible to defend a divorce petition, which Hatley says was “often a colossal waste of money and extremely acrimonious”. According to Hatley, the new legislation is having a positive impact. “It has made the experience easier and much less stressful for our clients: with the end of the blame game and the ability of the other party to contest the proceedings, couples now have a much better chance of starting the process off on a constructive and collaborative footing.”

How to get divorced: explained

Now you know more about the new divorce legislation, it might be time to start thinking about how to get a divorce. This step can be daunting enough, but if you're unsure of the divorce process as well, the whole thing might feel quite intimidating.

Want to know how the process works or how much a divorce costs? Solicitor Caroline Elliott, a divorce specialist and partner at law firm Roythornes Solicitors explains everything you need to know, breaking down the process into these steps:

Complete a divorce application
Send it to the court with a copy of your marriage certificate
Provide your financial details as part of the 'financial disclosure' process
The respondent acknowledges they've received the divorce application
After 20 weeks from the court issuing your application, apply for a ‘conditional order’
After six weeks and a day, apply for a ‘final order’

"It’s a lot easier than people think," Elliott says. "That’s because although it has to go through a ‘court’, it’s really an administrative process. The courts aren’t there to make people stay together who don’t want to be, so as long as you fill the form in properly and don’t make any hideous mistakes, it’s probably going to be OK."

And while it may be easier with some help from a lawyer, you don't have to have one.

unrequited love and a broken heart in hands

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"It is really straightforward. I would suggest getting legal advice, but you can pretty much do it all yourself if you’re confident about it. The complicated thing with divorce is not the dissolving of the marriage but the sorting out of the issues surrounding that. It's the money and issues about children where you'll need a lawyer," she adds. So if you're thinking about going through the divorce process in England or Wales, here's everything you need to know.

Divorce process in 6 steps

1. Complete a divorce application

The first thing you need to do is fill in a divorce application. Before the law change on 6 April 2022, this was previously known as a ‘divorce petition’. If you fill in the application, you are the ‘applicant’ (previously the ‘petitioner) aka the person steering the ship. Thanks to the new legislation, applicants can also do a joint application for a divorce.

You can find the application form online. "You fill it in and it almost talks you through it with lots of footnotes explaining what the sections mean," Elliott says. What information will you need for this? Names and addresses, dates of birth, where you got married, all pretty basic info.

Previously, the next step was the tricky bit, as the ‘petitioner’ had to give ‘grounds for divorce’. This was broken down into specific categories, including adultery, desertion and unreasonable behaviour. If you didn’t want to have to blame someone, the only other option for couples was to live separately for two years before getting divorced. Thankfully, the new legislation makes this part of the process much easier. “The only reason you can give is that the marriage has broken down irrefutably,” explains Elliott. “You don't have to say why or whose fault it was or anything like that.” In fact, even if you wanted to blame someone, you can’t. Interestingly, Elliott says that while the new legislation is a welcome change for most people, some clients are upset that they aren’t able to blame their partner, if they feel they have caused the marriage to break down. “I don't think any family lawyers particularly thought about it because we just thought anything that reduces conflict is great. But actually, quite a lot of people have said: ‘Well, what do you mean that can't say whose fault it was?’. So that was a bit of a surprise.”

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2. Send the application to the court

Once your application is filled in, there are a few other bits you'll need. "You need to have either the original marriage certificate or an official copy that you get from the local registrar. That costs around £12," Elliott says. There will also be a court fee at this point (currently £593) and the application won't be issued without a payment being made.

"The applicant has to pay that, but people often agree to share the costs. If you’re on a very low income you can sometimes get an exemption from some of the fee but you have to make a separate application and produce details of your circumstances."

3. Financial disclosure

“You don't have to sort your money out as part of the divorce, it's not a pre-condition of getting divorced,” explains Elliott. But, she says it’s “good practice to sort your finances out at the same time”. That's where financial disclosure comes in. ‘You have to exchange information about your financial position and then hopefully come to an agreement.” Elliot explains how it works from a practical point of view. "In the application, there's a question asking if you want to make a financial claim and you just tick the box," she says. "Very often people don’t know exactly what there is [money-wise] to argue about. We have a process called financial disclosure which means that before you start even considering how you’re going to divide things up, you both need to be open and honest and provide information about your finances. This tends to be done in parallel to the application."

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4. Respondent acknowledges receiving the divorce application

Once you’ve completed the application, the court has to issue it and send it to the other person. One big change to this part of the process is that, following the law reform, there is now a 20-week ‘cooling off period’, which starts once the court has issued your application. “You can't get your conditional order until this 20-week period has passed,” explains Elliott (more on what a conditional order is below). She adds: “The government says this is intended to provide a meaningful period of reflection and the chance to reconsider. But if your divorce is inevitable then you use that period of time to cooperate and sort other things out.”

Although you now have to wait 20 weeks, the process is relatively straightforward. "Once you’ve sent it off to the court, your ex-partner will then get a copy of it - so they'll know what you’ve said [in the application]. The person on the receiving end – the ‘respondent’ – then has to send back an acknowledgement form confirming they’ve had the papers”, explains Elliott. Previously, at this point, the respondent could state whether they were going to defend against the grounds for divorce, but the new legislation means it is no longer possible to defend a divorce.

5. Complete a Conditional Order

Next, the court sends a copy of the respondent’s acknowledgment to the applicant. Once the 20-week period has passed, you can then apply for a conditional order, which was previously known as a ‘decree nisi’. “That terminology has changed,” explains Ellott. “I think the whole idea is to sort of make it more accessible. The ‘decree nisi’ and ‘decree absolut’ was a bit old-fashioned.” So, what does the conditional order actually mean? “This is the point where the court says: ‘you’ve filled the form in properly and we agree it can go ahead’."

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6. Complete a Final Order

"Once you’ve got your conditional order, after six weeks and a day, if you’re the applicant, you can apply for the final order. That’s the bit of paper that dissolves the marriage," Elliott says. "When you read that someone’s got a divorce in six weeks, what it actually means is they’ve actually just got the final order, it doesn’t mean it only took six weeks. That’s what people refer to as a ‘quickie’ divorce in the tabloids because they don’t understand the process." The six weeks and a day is essentially another cooling-off period in case you change your mind.

How long will the process take?

“Anecdotally, we understand that at the moment, it's taking the court about four weeks to issue an application once it's made,” says Elliott. “That's not ideal, they have been quicker than that in the past.” She says this is in part due to the fact that the whole system is online now and some clients have struggled with technical difficulties or the system not working properly. So how long in total can you expect the process to take? “It's going to take a good six months,” says Elliott. “It's not going to be a quick thing by any means. But I think that’s part of the intention, so people can not rush into it and think about it.”

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How much will it cost?

This depends. "Aside from the court fee, it would probably cost about £600," Elliott says, "but that’s only dissolving the marriage. The expensive part of it that can run into thousands of pounds if there’s lots of arguing with the money and children side of it.

"The more people try and agree, the less expensive it will be"

"The more people can try and agree – even if it’s difficult – the less expensive it will be. The costs can run away when people just won’t engage with it or argue with every tiny little bit. Pick your battles and don’t fight about the little things, it’ll only cost you money. Most family lawyers operate on hourly rates rather than fixed fees because you don’t know how long it’s going to take or if people are going to argue," she adds.

Will you have to talk to your ex throughout the process?

You don't have to, but it might help if you can. "It’s better if you can communicate with your ex-partner – especially if there are children involved. Even though you’re not going to be married anymore, you’re still parents – so if you can retain some semblance of a relationship, it's better for everybody," Elliott says.

However if it's hard to talk to them or a domestic abuse case, then don't.