If you decide to do a DIY divorce rather than be represented by a solicitor then the court will refer to you as a ‘litigant in person’.
The process of dissolving a marriage is now known as a ‘divorce application’
a) Have you been married at least one year?
You cannot apply for a divorce until you have been married for at least 1 year. If you haven’t been married that long, then you can get separated and optionally put in place a separation agreement – but you will have to wait until the first anniversary of the marriage before applying for divorce. In some circumstances, namely a very short marriage which has not been consummated (you have not had sex) then it may be possible to get the marriage annulled.
b) Are you entitled to get divorced in England (and Wales)?
To get divorced in this country you must show that you have sufficient connections with England or Wales. The court will want to know that you are either: a) living in England or Wales (known as residence) or b) regard England or Wales as your home country (known as domicile).
In short – one of the following should be true:
- You and your husband (or wife) both have your permanent homes (known as domicile) in England and Wales when the divorce petition is started; or
- You and your husband (or wife) are both living in England and Wales when the divorce petition is started; or
- You and your husband (or wife) both had your last home in England and Wales and one of you must still be living in either of these countries when the petition is stated; or
- Your husband (or wife) must be living in England or Wales when the divorce petition is started; or
- You must have been living in England and Wales for at least a year on the day the divorce petition is started; or
- You must have your permanent home in England or Wales and have been living in either of these countries for at least six months on the day the divorce petition is started.
If your case is complicated because you are foreign nationals or are English ex-pats living abroad please feel free to call us on 03333 090 9383 for clarification and assistance.
c) Do you have a sufficient reason for the court to grant you a divorce?
You have to provide the court with a reason for the divorce – these reasons are sometimes known as the ‘grounds for divorce’.
For a divorce application to be successful, you must show that the marriage has irretrievably broken down by establishing one of the following five facts as proof:
- Adultery of the other spouse;
You cannot get divorced because of your own adultery – only because of your spouse’s adultery. In general, you should not name the person that your spouse cheated with in your application – as it gains you nothing and can add considerably to the costs. You should only proceed on grounds of adultery if the spouse who committed adultery is happy to admit to it. This is because it is very difficult to prove adultery (you need video footage of sex taking place, or a pregnancy – hotel receipts and text messages/photos etc are not enough). If you proceed with an adultery application and your spouse won’t sign the papers to admit the adultery, then you will have to start again and will have wasted a good deal of money.
- Desertion by the other spouse after two years;
This is rarely used – it refers to the cases where a spouse has literally disappeared and has not been in touch.
- Separation with consent after two years;
This is a good reason to use if you can as it avoids laying the blame on either side. You must however have been living in separate addresses for at least 2 years. It is just about possible to claim two years separation when you have actually been living in the same house but you need documentary evidence of doing separate shopping / laundry / bills etc. If the courts are not satisfied that you have been properly separate for two years your application may be rejected. This reason can only be used if both parties agree, so don’t apply using this reason unless you have checked that your ex agrees.
- Separation without consent after five years.
This reason also avoids any blame. It can be used even if your ex doesn’t agree to the divorce. The downside is obviously that five years is a long time to wait - Unreasonable behaviour
This is the ‘catch-all’ reason used when none of the other reasons apply. It is probably the most common reason given for divorce because:
- a) it allows you to get divorce right away without waiting and
- b) you don’t need your spouse to admit to the unreasonable behaviour (unlike adultery) and so they cannot block the divorce.
It is still better if your spouse agrees to sign their divorce papers as this will keep the costs down. You will need to detail four or five examples of unreasonable behaviour (though it doesn’t have to be anything terrible).
Reasons such as: frequent arguing or making you feel ignored and isolated or lack of sex can all be valid reasons if worded correctly.
