Whoever applies for divorce will not make any difference to the outcome of the divorce – you will end up legally separated no matter what. However, with no-fault divorce, there is a choice – either party can make the divorce application or they can apply for a divorce jointly. Below, you will find an explanation of the differences.
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Anyone applying for a divorce or dissolution of a civil partnership by themselves is known as a ‘sole applicant’. In a sole application, the person applying for the divorce or dissolution will be referred to as the ‘applicant’ or ‘sole applicant’, and their spouse/civil partner will be known as the ‘respondent’. Sole applicants cannot change their application to a joint application after the application has been issued, because this must be done at the outset.
To apply for a divorce, you usually have two options:
- Apply for divorce yourself using the government portal
- Use a solicitor to file the paperwork for you
This is simply the beginning of the divorce process. The financial and parenting arrangements will usually need to be agreed separately to this application.
Sole applicants can apply for help with fees where they have little or no savings and either receive certain benefits or have a low income. The court fees are currently set at £593.
Can my spouse dispute the divorce?
In a sole application, the respondent can only dispute the divorce application in very limited circumstances. Respondents cannot dispute whether the marriage has broken down, they can only dispute the application if:
- They dispute the jurisdiction of the court in England and Wales to conduct the proceedings. For example, where neither party lives nor has any other connection with England and Wales.
- They dispute the validity of the civil partnership or marriage. This could happen if the parties have not entered into a legally valid marriage.
- The civil partnership or marriage has already legally ended. If the marriage or civil partnership has already been brought to an end in proceedings outside England and Wales, for example.
It is also possible to challenge an application for reasons such as procedural compliance and fraud.
In joint applications, both parties apply for their divorce or dissolution application together. Parties are equally responsible for the application and are known as ‘applicant 1’ and ‘applicant 2’. This option allows couples to agree their marriage has broken down irretrievably and apply together, reducing complexity.
Whilst joint applications are encouraged, there may be some circumstances where it might not be appropriate to apply together. For example, where one spouse has experienced domestic abuse from the other party. Joint applications are made in the same way as sole applications, either digitally or on paper. Where either or both applicants have instructed a solicitor, the application must be made by the solicitor using the digital service, unless there is one solicitor acting for both applicants, which means the paper forms must be used.
Joint applicants can agree between them how they pay the court fee for the application, however if they use the digital service, applicant 1 will have to pay the court fee. For paper applications, either applicant can insert their details onto the court fee page. Joint applicants can also apply for help with fees providing both applicants have little or no savings and either receive certain benefits or have a low income. If this is only the case for one applicant, help with fees will not be available for joint applicants.
What happens if one joint applicant disagrees?
For those who began a joint application but find themselves in a situation where they cannot continue with it, perhaps because of a deterioration in the relationship with the other applicant, or if the other party fails to take the necessary action required to progress the application, it is possible to ‘switch’ the application from joint to sole.
However, it is important to note, this can only be done at ‘conditional order’ and ‘final order’ stage. To do this on a paper application, applicants would need to use Form D84 to proceed solely at conditional order stage, and Form D36A at the final order stage. If a joint applicant wishes to proceed solely at the final order stage, they must give 14 days’ notice to the other party of their intention to give notice to the court that they wish the conditional order to be made final.
Online applicants should follow the guidance on the digital system.
Does it matter who applies if my spouse or I live outside England or Wales?
Who applies for divorce or dissolution can make a difference if one of you lives or has citizenship outside England or Wales. This is because courts in different countries have varying divorce laws, and certain courts have better provisions for certain situations. The applicant is the person who chooses the court, and, in cases where it is an option for them, they can choose the country, or jurisdiction, too.
Remember, if the respondent disputes the jurisdiction of the court in England and Wales because neither party lives nor has any other connection with England and Wales, they can challenge the divorce application.
You must meet certain eligibility criteria to be able to apply for a divorce in a particular country. Across the EU, you must have nationality in the country in question, though in England and Wales, the requirement is based on ‘domicile’.
This means that you must fulfil one of the following criteria:
- Your spouse must be domiciled in England and Wales when divorce proceedings begin
- The respondent must be habitually resident in England or Wales
- The applicant must be habitually resident in England or Wales for at least one year before applying for divorce, or domiciled in England or Wales for at least six months before the divorce application is made
- At least one of you must still live in England or Wales.
If my spouse applies first outside of the UK, do I have the chance to dispute it?
If your spouse has applied for divorce in another country, and if no other EU country is involved, you may be able to argue that the divorce should take place in England or Wales instead. This process is called ‘forum conveniens’ and means ‘convenient or appropriate forum’.
Likewise, if your spouse has applied in England or Wales and you believe the divorce should take place elsewhere, you can dispute the application using Form D8B Answer to a divorce/dissolution (judicial) separation application because you do not agree that the court has jurisdiction to deal with the proceedings. You will need to show the English court that the country in question is the right place to apply for divorce. There is a court fee for making this application.
Even where a spouse starts the divorce process outside the UK and they have missed the opportunity to invoke forum conveniens, they may still be eligible to apply for financial provision from a UK court if it is obvious that the foreign court has overlooked an aspect of the settlement, such as a property or pension in England. However, proving this is extremely complex, and is further complicated by a tricky process.
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