If you have received a divorce application, or you are thinking of beginning the process yourself, talk to us. Our team will explain the next steps and discuss with you the best way forward. Ensuring you get early advice to make sure that your matter gets off on the right footing.
Seeking early expert legal advice about your divorce or separation does not need to become a battle. We can support you to make informed decisions to resolve your differences with your spouse or partner.
Each situation is individual to you and we never lose sight of that. We regularly advise on large complex cases for high net worth individuals including city professionals, farmers, sizeable pensions, overseas properties and hidden assets.
No Fault Divorce
A new divorce procedure is in force for applications that are issued from 6 April 2022.
Historically, in order to obtain a divorce in England and Wales it was necessary for the party applying for a divorce to establish that the marriage had broken down irretrievably and to do that they had to prove one or more of five facts. Three facts were based on fault, i.e. adultery, unreasonable behaviour and desertion, and two facts were based on a period of separation (two years’ separation with consent or five years’ separation without consent).
As a result of this, many parties were forced into making fault allegations (adultery or behaviour), not necessarily because that was the real cause of the breakdown, but because the alternative was to wait at least two years for a divorce with consent, or five years where there was no consent.
Most people did not want, or could not afford, to put their lives on hold for that long.
From 6 April 2022, instead of relying on fault or separation, an application for divorce issued on or after that date will simply state that the marriage has broken down irretrievably and this does not have to be proved. It is not necessary to rely on fault or separation and the court does not require evidence of the irretrievable breakdown of the marriage.
Divorce Frequently Asked Questions
How do I apply for a divorce?
To apply for a divorce, you must have been married for at least a year. It doesn’t matter where in the world you were married, but you can only apply for a divorce in England and Wales if either you or your spouse meet certain residence conditions or are domiciled here.
The divorce process is generally administrative. This means that usually neither of you will need to see a judge to get a divorce as it is almost always agreed by a judge on the paperwork.
From 6 April 2022, the terminology that is used in the divorce process changed. What was previously called the divorce petition is now called the application. The first stage in the process is the conditional order (formerly decree nisi) and the decree absolute is now known as the final order.
Can I make a joint application?
For the first time, from 6 April 2022 a divorce application can be filed by either or both parties to the marriage. If a joint application is made, you will be equally responsible for the application. You can agree between yourselves how to pay the court fee for the application.
How long will my divorce take?
Your family lawyer will be able to advise you how long your divorce is likely to take. This can vary depending on the current timescales for the court dealing with your divorce, and whether each step in the divorce is taken promptly and financial arrangements do not hold things up. There is a minimum overall timeframe from the divorce application to final order of 26 weeks. This is made up of a minimum timeframe from the issue of the divorce application to conditional order of 20 weeks plus a minimum timeframe from conditional order to final order of six weeks. The process may well take longer but your family lawyer will keep you updated as you go along.
What are the implications in relation to my Will?
It’s important to note that divorce may mean that certain provisions in your Will do not work as you might have intended them to. You will need to make a new Will quickly after final order (or in contemplation of divorce) to ensure your wishes are carried out in the event of your death.
Are there any Tax implications due to my separation?
It is vital that you seek independent advice on the tax implications of your separation/ divorce and any proposed settlement at the earliest opportunity.
Income Tax, Capital Gains Tax and Inheritance Tax (IHT) all need to be considered in formulating a divorce settlement. There is no immediate tax charge on the transfer of assets under a divorce settlement for either IHT or Income Tax purposes. There are, however, immediate Capital Gains Tax considerations for any transfers between spouses following permanent separation. By planning a divorce settlement carefully and seeking early independent financial advice, you should be able to minimise tax costs of any transfer under a divorce settlement.