What do I need to know about the divorce procedure?

What do I need to know about the divorce procedure?

The UK has three legal systems – England and Wales, Northern Ireland, and Scotland – and each jurisdiction is governed by different laws. The divorce procedures in England/Wales and Northern Ireland are virtually identical, however, so for the purposes of this overview, we’ve lumped them together.

Divorce procedure in England, Wales, and Northern Ireland

The divorce procedure in England, Wales, and Northern Ireland has three main stages: service of the divorce petition; decree nisi; and decree absolute.

(1) Divorce Petition

One spouse (the ‘petitioner’) must file a petition asking the court to grant a divorce – a couple cannot ask for a divorce together, even if they both want it.

After the court receives the divorce petition, it sends a copy to the other spouse (‘the respondent’) and any co-respondent named in the divorce petition (e.g., a person who had an affair with the respondent). This is known as ‘serving the petition’.

The respondent has eight days to acknowledge receipt of the petition. If they don’t do this, the court will contact the petitioner and ask for more details and, if necessary, arrange for a court official – known as a bailiff – to serve the petition in person.

What happens next hinges on whether or not the respondent contests the divorce or agrees to it. The parties will need to agree a deal regarding ownership of money and property, and arrangements for children (if any).

Mediators or solicitors can help the parties negotiate an agreement that is fair.

(2) Decree Nisi

The next stage in the divorce process in England, Wales, and Northern Ireland is the ‘Decree Nisi.’ This is granted only when a judge has reviewed all of the divorce papers and is satisfied that there are proper grounds for a divorce. The judge will also check that all financial issues and arrangements for the children have been agreed or are in the process of being resolved. The parties may be required to attend court, but many divorces happen entirely by post.

(3) Decree Absolute

The divorce procedure in England, Wales, and Northern Ireland ends with ‘the Decree Absolute.’ The petitioner can obtain this six weeks and one day after the Decree Nisi. If the petitioner does not apply for the Decree Absolute, the respondent can apply for it, but only after a further three months have passed. Once the Decree Absolute is issued, the parties are no longer married and are free to re-marry.

The court will only grant the Decree Absolute if it deems all arrangements for the children are satisfactory. The court can also make a final financial order before the Decree Absolute is granted, but the order will only come into force after the decree has been made absolute.

(4) Getting help with the divorce procedure in England, Wales, or Northern Ireland

A solicitor who specialises in family law can help you handle your divorce. You can search for a family law solicitor specialising in divorce in our solicitor directory. Simply fill in the form in the top right-hand corner of this page.

Divorce Procedure in Scotland

There are actually two divorce procedures in Scotland: the simplified (“do-it-yourself”) procedure and the ordinary procedure. The spouse who applies for the divorce is called the ‘pursuer’ and the other the ‘defender.’

(1) Simplified / DIY Procedure

The DIY procedure is available only if:

  1. the divorce is uncontested if a party objects to the procedure at any stage , it will stop;
  2. either (i) the marriage broke down irretrievably because the parties lived apart for at least one year and both consent to the divorce, or the parties lived apart for at least two years and one spouse does not consent to the divorce, or (ii) one spouse has been issued with an interim gender recognition certificate;
  3. there are no children under 16 – this includes adopted children and children accepted into the family;
  4. there are no disputes over property or money;
  5. neither party suffers from a mental disorder affecting their ability to manage their own affairs;
  6. there are no other court proceedings; and
  7. there is no religious impediment to the remarriage of either partner – this may apply if a party is Jewish and seeks a religious bill of divorce (known as a ‘get’).

(2) Ordinary Divorce Procedure

Where a DIY divorce is unavailable, a pursuer must use the ordinary divorce procedure.

The ordinary divorce procedure begins with the solicitor for the pursuer drafting a summons (in the Court of Session) or an initial writ (in the sheriffs’ courts).

The divorce application is sent to the court and a copy is served on the defender. Where adultery is a ground for divorce, a copy is also sent to the third person involved if he or she is named in the application.

If the defender agrees about the grounds for the divorce and what to do about any children, money and property the divorce can go to court as an undefended case . In this event, neither partner usually has to go to court. The sheriff will examine the case and the divorce will then be granted unless the court requires further information.

If the defender does not agree about the grounds for the divorce, or issues about the children, money or property the divorce application will go to court as a defended case . Defended cases can be long and expensive, but it may be possible to settle disputes using mediation or the collaborative family law process.

(4) Getting help with the divorce procedure in Scotland

As above, a solicitor who specialises in family law matters can help you navigate the divorce procedure in Scotland.

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