Does it Matter Who Files for a Divorce?

Who files for a divorce does not make a difference in terms of the outcome of the divorce: a divorcing couple will end up legally separated no matter what. However, filing first, or being the ‘petitioner’ rather than the ‘respondent’, can make a difference to factors such as timings, potential costs incurred, the legal reasons stated for the divorce, and at which court the divorce will take place. Below you will find an explanation of the differences between being the petitioner (the spouse who files for divorce) and the respondent (the spouse who then responds by agreeing to, or contesting, the divorce).


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There are timing advantages

One of the main advantages that the petitioner has in a divorce is greater control over time frames. Having more time to prepare means more time to select a lawyer that works for you, as opposed to having just 30 days as a respondent to find a lawyer and to file your response.

Choosing when to begin the divorce also means also means more time to plan for the financial costs, and to start protecting community assets.

The person who files has the option of slowing down or stalling the divorce process if they wish. This can be inconvenient for the respondent if, for instance, they are hoping to remarry quickly.

The petitioner gets the first argument in court.

There are cost advantages

The spouse who files for divorce (the petitioner) also pays the court fees. Commonly, the petitioner is the spouse with the higher income and so can afford the fees more easily. Being the person who filed for divorce, the petitioner is often more keen to pay the fees to help the divorce go through uninterrupted. That said, in some circumstances the petitioner can  claim the court fees from their spouse, though this less common.

In many cases, the couple will simply come to an agreement about who will file for divorce and pay the court fees.

The person who files first gets to make more decisions

The petitioner has more say over certain matters in a divorce. For one, they get to choose which court to go to for the divorce proceedings. There are 11 different divorce centres in England and Wales, and each has different backlogs and waiting times. Deciding which court to go to will therefore affect the timeline.

Another key decision the petitioner gets to make is the reason for divorce. In England and Wales, there are five reasons, or ‘facts’, you can use when filing for divorce to prove that your marriage has irretrievably broken down: adultery, unreasonable behaviour, desertion (for a minimum of two years), two years separation (with consent), or five years separation (no consent required).

As well as selecting the fact itself, the petitioner chooses which details to include in the petition. This means that if the couple is divorcing based on one of the ‘fault’ facts – that is, adultery or unreasonable behaviour – the respondent may have to go through the experience of having some aspects of their private life and behaviour described to the court. However, the vast majority of divorces do not go to court, and in those cases the information within the divorce petition remains private.

Note that if the couple is divorcing on the grounds of adultery, only the person who has not committed the adultery may file for divorce.

Does it make a difference who files if my spouse or I live outside of England or Wales?

Who files for divorce can matter more if one of you lives or has citizenship outside of England and Wales. This is because courts in different countries have varying divorce laws, and certain courts have better provisions for certain situations. As already mentioned, the petitioner is the one who gets to choose the court and, in cases where it is an option for them, they get to choose the country too.

Having your case heard in one country over another can provide significant advantages. For instance, courts in England and Wales are more favourable to same-sex couples than other countries that do not have equal marriage laws. They also provide better protections for the weaker spouse, and maintenance laws are different. In Germany for example spouse maintenance, child maintenance and the division of assets can all be treated quite differently than in the UK.

Note that you must meet certain eligibility requirements in order to file for divorce in a particular country. Across the EU, you must have nationality in the country in question, though in England and Wales, requirement is instead based on ‘domicile’.

This means 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 petitioner must be habitually resident in England or Wales for at least one year before filing for divorce, or domiciled in England or Wales for at least six months before the petition
  • at least one of you or your spouse must still live in England or Wales.

If my partner files first outside of the UK, do I have the chance to contest it?

If your spouse has filed 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 instead. This process is called ‘forum conveniens’, meaning a ‘convenient or appropriate forum’.

Likewise, if your spouse has petitioned in England or Wales and you believe the divorce should take place elsewhere, you can also invoke forum conveniens and argue to the English court that the country in question (if outside the EU) is the right place to file for divorce.

Even if your spouse has started a divorce process in a country other than the UK and you have missed the opportunity to invoke forum conveniens, you may still be eligible for financial provisions from the English court – if it is obvious that the foreign court has overlooked an aspect of the settlement, such as a property or a pension in England. Proving this can be a complicated procedure, however.


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