On 6 April 2022, the law changed to allow a married person to divorce their partner even if the partner is opposed to a divorce. This means that it is usually possible to obtain a divorce if your partner doesn’t want one, as there are only very limited grounds on which a divorce can be opposed.
The law was changed to allow a so-called ‘no-fault divorce’ and reduce conflict at what is likely to be a difficult time. The relevant legislation is now the Divorce, Dissolution and Separation Act 2020, and this sets out the rules for obtaining a divorce.
When Can I Divorce?
If your relationship has irretrievably broken down, you can apply for a divorce, and you do not have to show any grounds for this.
Previously, it was necessary to demonstrate the breakdown of the relationship, for example, by citing adultery, unreasonable behaviour or desertion. This had the potential to make one party feel that they were to blame or increase animosity if it was necessary to provide details of the behaviour complained of.
If a spouse did not consent to divorce, it was sometimes necessary to wait five years before the courts would grant an order.
Now, provided that you have been married for at least one year, you can apply to the courts for a divorce. For this reason, a defended divorce is now extremely rare.
Can You Divorce if Your Partner Doesn’t Want To?
The limited grounds on which a divorce can be opposed are:
- The marriage is not recognised under the laws of England and Wales
- The marriage is not legally valid, for example, the proper formalities were not observed
- The marriage has already been ended, for example, a divorce was obtained in another jurisdiction
How Do I Get a Divorce if My Partner Does Not Want To?
The new laws allow one or both spouses to apply to the courts for a divorce. If your spouse does not want a divorce, you will need to apply yourself.
There is a form to complete, known as form D8. This can be dealt with online or you can fill in a paper version and send it to HM Courts and Tribunals Service Divorce and Dissolution Service. You will also need to pay the court fee of £612, although it may be possible to apply for help with this if you are on benefits or have a low income.
You will need to provide full names and addresses for yourself and your spouse and your marriage certificate or a certified copy. If the certificate is not in English or Welsh, you must provide a certified translation.
Once the court approves the application, it will send a copy to your spouse. They should ideally complete and return an Acknowledgement of Service form within 14 days saying whether they agree with the divorce application or if they intend to dispute it.
What Happens if Your Spouse Does Not Respond to a Divorce Application?
Petitioning for Divorce
If your partner does not reply to the divorce application, you can have the papers formally served on them by a process server or bailiff, who will provide a Certificate of Service confirming that your spouse has been served with the application. Your solicitor can arrange for this to be done. It may be possible to ask the court to order that your spouse pay the costs of service.
Alternatively, if you can prove to the court that your spouse has received the application, for example, because they have referred to it in emails to you, you can ask the court to accept deemed service.
In the event that you do not have an address for your spouse and you have taken all reasonable steps to locate them, the court can be asked to dispense with the service requirement. You will need to explain what you have done to try and find their address.
Once the service element has been dealt with, you need to wait for 20 weeks. This is a cooling-off period. You can then apply to the court for a Conditional Order.
After the Conditional Order is issued, you must wait a further six weeks and one day, and you are then able to ask the court for a Final Order.
Difficulties with the Divorce Petition Process
While the process of legally ending a marriage is now relatively straightforward, there are some circumstances which could cause difficulties.
These include:
- Making a mistake when completing the application, for example, giving incorrect details for yourself, your partner or the marriage
- Not being able to locate your marriage certificate. A replacement can be ordered from the General Register Office for £12.50 and will be sent to you within four days of your request
- Not including the fee with a postal application
- Delays caused by your spouse not signing and returning the acknowledgement of service
- Delays because your spouse cannot be located
Rectifying Service of the Divorce Petition
If errors are made when the divorce petition is served, you may need to reserve it and provide evidence to the court that this has been done.
You can use a process server if you are having difficulties in obtaining a response from your spouse or if you need evidence that they have been served.
If you have evidence that your spouse has been served, you can ask the court to deem that service has taken place, even if they have not signed and returned the acknowledgement of service.
What You Have to Prove
To prove that service has taken place, you can either use the acknowledgement of service signed by your spouse or the certificate of service provided by the process server.
For more information, see our article on making a sole divorce application.
Dealing with Related Issues
It is essential to deal with financial matters at the same time as obtaining a divorce. Divorce alone does not end your financial obligations to your spouse, and these will continue until you have a final order relating to property and finances.
This means you should take steps to try and agree on the fair division of assets and property. If you and your spouse can agree on what you want to happen, your solicitor can ask the court to approve the agreement and seal it, making a binding order.
Where it is not possible to agree, your solicitor can negotiate on your behalf and, where necessary, guide you through a dispute resolution process, such as mediation.
For more information on financial matters in divorce, see:
- How long after divorce can you claim assets?
- Divorce without financial settlement - are you at risk of claims?
How Long Does It Take to Get a Divorce If Your Spouse Refuses?
The minimum time taken for a divorce is around six months. If your spouse is uncooperative and you need to engage a process server or court bailiff, this can make the process lengthier; however, they are usually able to serve papers relatively promptly.
If it is necessary to ask the court to waive the need for service, the process may take a little longer.
Generally speaking, other issues will take longer than the divorce itself, such as dividing assets and liabilities and making arrangements for children.
Contact our Divorce Solicitors
If you want to start divorce proceedings but your partner is reluctant, contact us today and we will talk about the best way to proceed. Our divorce solicitors are highly experienced and will guide and support you as needed at this difficult time.
For further details, please visit our family law section. If you'd like to speak with an experienced divorce solicitor, call us on 0330 173 3980, email us at info@witansolicitors.co.uk, or complete our contact form. We’re here to discuss your circumstances and explain how we can support you.
