Divorce is never an easy topic to bring up with your spouse and it can be made even more difficult when you ask for a divorce but they don’t want one. So now you ask yourself, can I get a divorce if my spouse doesn’t want to?
Can I still get divorced if my spouse doesn’t agree?
Yes, you can apply for a divorce on the grounds of ‘irretrievable breakdown’ of your marriage. You are no longer required to provide a reason, explanation or apportion blame when you are applying for a divorce due to the No-Fault Divorce legislation under the Divorce, Dissolution and Separation Act 2020.
Another change brought in by the new legislation, which came into force on 6th April 2022, is the removal of a respondent being able to contest the divorce.
Under the old legislation, where the spouse petitioning for divorce had to establish one of five facts to evidence the fact that the marriage had irretrievably broken down, the respondent could refuse to let the divorce proceed on the basis that the chosen fact had not been established and therefor that the marriage had not irretrievably broken down. This could lead to drawn out, acrimonious proceedings and in some cases led to the Court agreeing that the divorce could not proceed.
Following the landmark case of Owens v Owens [2018] where this issue arose and Mrs Owens was forced to wait 5 years so that she could divorce her husband without his consent, there was considerable backlash and the government agreed that UK divorce law had to be reformed.
Under the new legislation, a divorce application can only be ‘disputed’ under very specific circumstances such as jurisdiction; the marriage already being legally ended; or the validity of the marriage. As a result of these changes, it is indeed possible for you to make an application for divorce without the agreement of your spouse by way of a ‘sole’ divorce application. It is important to be aware that it is possible to make a ‘joint’ application for divorce and you should speak with a solicitor to explore whether this is appropriate for your situation.
It is also important to note that where possible, issues relating to the breakdown of a marriage should be dealt with amicably to reduce conflict and stress and to protect any children of the marriage. Therefore, if the circumstances allow, your spouse can be put on notice about your intention to apply for a divorce so that they are not taken by surprise and so that they feel consulted. You may also wish to have a discussion with your spouse so that they understand your position. Alternatively, this can be put forward by a legal representative on your behalf. All changes introduced by the new legislation also apply to the dissolution of civil partnerships.
What if my spouse does not respond to my divorce application?
When your sole application for divorce is submitted, it will be issued by the Court and served on your spouse who will be referred to as the respondent therein. The respondent then has 14 days to acknowledge the service of the application. Once the application has been issued, the proceedings will enter a 20-week ‘holding period’ or ‘cooling off period’ before you can apply for the conditional divorce order.
If the respondent fails to acknowledge the service within the first 14 days there are various options available that will allow for the divorce application to go ahead despite the lack of initial response and your application will not simply be rejected once 14 days have passed.
For example, arrangements can be made for the respondent to be served personally, or an application for deemed service can be made if you can evidence the fact that your spouse has received the divorce application. If the respondent fails to respond to the divorce application then the steps to be taken at that point will depend on the individual circumstances of the case and it is important to seek legal advice as soon as possible.
I am the respondent, what do I have to do?
Usually, you will receive the application from the Court via email in addition to a Notice of Proceedings. You must complete the Acknowledgment of service provided by the Court within 14 days. It is also important that you check that the details on the divorce application are correct, for example the spelling of your name or your preferred email address.
What if we have been married less than a year?
You cannot get a divorce if you have been married less than a year. This is known as the ‘one year rule’. In these circumstances you can separate from your spouse and get a Separation Agreement which you can read more about here. Although it will not be a final binding order, the Agreement (provided it is prepared correctly) will set out the terms of your separation including how the assets, debts and the responsibilities each of you have will be shared between you. After a year has passed from the date of your marriage, an application for divorce can be made.
If you are considering divorce; deciding and making arrangements in respect of what will happen regarding property, children and assets can be complicated and emotionally exhausting so you should consider speaking with a specialist family solicitor who will ensure your rights are protected and will support you throughout the process.
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