frequently asked questions

FAQ’s

Frequently asked questions about Divorce, Family Law and the 123 Divorce Service:

 

Divorce

 

Is an online divorce legal?

Absolutely.

Moreover,123 Divorce prides itself on being different from other divorce and family law providers.

It’s our mission to promote the idea that divorce doesn’t have to be a negative and traumatic experience, but can be balanced and fair. We believe that family separation can be civilised when advice and expertise is provided by the right company, who have their clients and their family at their very core. By taking this approach, we wish to challenge the stigma of divorce being perceived as a personal failure, and instead look at it as a new beginning.

Our process is as simple and easy as 1.2.3­.™, but our ethos is affordable for everyone, beneficial for your whole family and convenient for you.

We are regulated by the Solicitors Regulation Authority (SRA), members of Resolution and covered by public indemnity insurance of £5m.

Should you have any questions about online divorce, the services provided by 123 Divorce or family law in general, please navigate to our products page or feel free to contact us for further information.

 

What is an ‘uncontested’ divorce/civil partnership dissolution?

If a divorce/civil partnership dissolution is ‘uncontested’, it means that both parties ACCEPT that their relationship has irretrievably broken down – and that they both AGREE to it being legally dissolved (ended).

If you believe that your divorce/civil partnership dissolution may be defended/contested by your spouse/civil partner, our fixed fee divorce/civil partnership dissolution service will not apply and you will need to discuss your case with us first.

See What do I do if my spouse/civil partner threatens to oppose (DEFEND) the divorce/civil partnership dissolution if I apply for one? and What services do 123 Divorce offer?

What if my partner threatens to oppose (DEFEND) the dissolution of our marriage/civil partnership?

Even if your divorce is straightforward, if your spouse wishes to defend against proceedings, we will be able to represent you. Although such scenarios are outside our fixed-fee services, we do offer an affordable bespoke package.

A spouse/civil partner who doesn’t wish for dissolution of their relationship, and is therefore unwilling to accept that it’s over, will have the opportunity to ‘defend/contest’ the divorce/civil partnership dissolution.  The District Judge will seek an audience with both parties and give each party an opportunity to explain their circumstances. This means a court appearance, legal advice and attendance, additional legal costs and court fees. These situations are extremely rare and only 5% of applications per year are defended/contested.

If you suspect that your spouse/civil partner may not co-operate with your divorce/civil partnership dissolution then please contact us first via e-mail or telephone so that we can help and advise you on the best option.

Worst case scenario is that you remain separated for 5 years’ before applying to dissolve you marriage/civil partnership.

See Can I still get divorced even if my spouse tells me that they will not co-operate with the forms and will be obstructive?

 

Does it matter who issues the petition?

No

The outcome (the dissolving of a marriage/civil partnership) will be the same no matter who the petitioner or respondent is.

The main advantage in being the petitioning party is that you have an opportunity to take the initiative; control the timetable (the speed of proceedings); choose which ground applies to your divorce/civil partnership dissolution; when to apply for a decree nisi/absolute or conditional order/final order and so on. The petitioner is also able to seek a court order demanding that their spouse/civil partner (the ‘respondent’) pay their legal costs.

The main disadvantage in being the petitioning party is that you will have to conduct the proceedings in respect of paperwork and you will initially be responsible for any court fees.

It is usually prudent to establish a sensible dialogue with your spouse/civil partner so that all matters are agreed before you send your petition to the court. This will minimise any unnecessary unpleasantness between parties and limit costs and delays.

 

When can I get a divorce and what else is required?

Marriage and civil partnership is a legally binding contract and in order for you to dissolve it under English law, all 3 basic legal conditions/requirements must be met.

  1. One year and one day has passed since the date of your marriage/civil partnership.
  2. You both agree to a dissolution and in doing so agree that the marriage/civil partnership is at an end, that it has broken down irretrievably and can be supported by one of the following FACTS or grounds:
  • Adultery (not applicable to civil partnership)
  • Behaviour
  • Desertion*
  • 2-years’ separation* (both parties must consent) and
  • 5-years’ separation* (without spousal consent)

                        *this means continuous years immediately before the petition was issued.

 3. ONE of the following legal jurisdictions (legal powers) of England & Wales relating to habitual residence (where you and your spouse/civil partner live and are based) must apply:

    1. Both parties are habitually resident in England and Wales; or
    2. Both parties were last habitually resident in England and Wales, and one of them still resides there; or
    3. The respondent is habitually resident in England and Wales; or
    4. The petitioner is habitually resident in England and Wales and has lived there for at least a year immediately before the petition is filed; or
    5. The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed; or
    6. Both parties are domiciled in England and Wales; or
    7. If none of 1-6 above applies and no court of another EU State has jurisdiction, either of the parties is domiciled in England and Wales on the date when the proceedings are begun.

What are the grounds for a divorce/civil partnership dissolution?

Under English Law, there is only ONE ground for the dissolution of a marriage/civil partnership; it has irretrievably broken down.

In order to demonstrate that the marriage/civil partnership has irretrievably broken down it must be proven by choosing one of 5 FACTS (or grounds) for a divorce or 4 FACTS for a civil partnership dissolution.

These are as follows:

  • For a Married Couple
  1. Divorce based upon adultery and intolerability (fact A);
  2. Divorce based upon behaviour (fact B);
  3. Divorce based upon desertion (fact C);
  4. Divorce based upon 2 years’ separation with consent (fact D);
  5. Divorce based upon 5 years’ separation (fact E).
  • For a Civil Partnership/Same-Sex Marriage
  1. Dissolution based upon behaviour (fact B);
  2. Dissolution based upon desertion (fact C);
  3. Dissolution based upon 2 years’ separation with consent (fact D);
  4. Dissolution based upon 5 years’ separation (fact E).

Please contact us if you require clarification or further assistance.

 

What do I do once I satisfy all 3 legal requirements?

Once you can satisfy all 3 legal requirements, then you can PROCEED in bringing your marriage/civil partnership to a legal end. This also applies to judicial separation.

Before purchasing, you must ALSO have the following information/documents available:

  1. You must know the whereabouts, or place of work, of your spouse/civil partner if you are no longer living together;
  2. You have your original marriage certificate or certificate of civil partnership, a certified copy or a certified foreign translation;
  3. You are in full agreement i.e. no further mediation or negotiations verbally or via correspondence between you and your spouse/civil partner are necessary;
  4. No other proceedings relating to your marriage/civil partnership have been issued in an English or Welsh Court or abroad.

You must satisfy the 3 legal requirements to dissolve your marriage/civil partnership. See When can I get a divorce and what else is required? If you don’t know the whereabouts of your spouse or you have lost your certificate, we can still proceed with dissolution proceedings.

 

Do I need my marriage certificate or certificate of civil partnership?

Yes

You must provide your original marriage certificate or certificate of civil partnership when you apply to the court for a divorce/civil partnership dissolution or judicial separation.

You will not be able to obtain a divorce or dissolution of a civil partnership unless an original marriage certificate, certificate of civil partnership, a certified copy or a certified foreign translation certificate is produced.

If you have a foreign/non-UK marriage certificate or certificate of civil partnership you MUST have your foreign certificate translated first. We offer a low-cost certified, notarised and legalised Foreign Translation Certificate service.

If you cannot produce your original certificate, we can, for a small charge of £40, acquire a replacement copy for you.

Note: – Once your marriage certificate or certificate of civil partnership has been sent to the court it will NOT be returned to you. It will be kept upon your court file and become part of the court records. It cannot be returned at any cost.

In return for handing over your marriage certificate or certificate of civil partnership, you will receive a decree absolute of divorce or final order of a civil partnership. This, in effect, replaces your marriage certificate or certificate of civil partnership and proves that you were married or in a civil partnership but it has now been dissolved (legally ended). This will then be your new legal status until such time as you either re-marry (or enter into another civil partnership).

Note: – Our foreign translation service is also applicable for any one requiring documents to be translated in to English, e.g. immigration, student or work visa and so on.

See I married abroad. Does this matter when applying for a divorce/civil partnership dissolution under England Law?

 

What are the stages of divorce/civil partnership dissolution?

In order to obtain a divorce/civil partnership dissolution you must prove to the court that your marriage/civil partnership has ‘irretrievably broken down’. This is the sole ground for obtaining a divorce/civil partnership dissolution.

There are 3 stages to the divorce/civil partnership dissolution process:

  1. Issuing the divorce/CP dissolution petition/application. The petition sets out the facts that you are relying on to prove that your marriage/civil partnership has broken down, plus other legal matters.
  2. Applying for your decree nisi/conditional order. The first of the two decrees. A provisional order indicating that the District Judge is satisfied that the ground for a divorce/civil partnership dissolution has been established.
  3. Applying for your decree absolute/final order. The decree absolute/final order of the court legally brings your marriage/civil partnership to a legal end. It is also the date upon which all agreed and approved financial orders – including consent (clean break) orders – become legally binding.

See I’ve ordered your fixed fee divorce/civil partnership dissolution service. What happens next?

 

How long will the divorce/civil partnership dissolution process take?

The dissolution of a marriage/civil partnership under English law follows a series of steps which cannot be circumvented or fast tracked.

It takes on average 3-5 months for the court to order a decree absolute (marriage) or final order (civil partnership).

Please note: an uncontested/undefended divorce is sometimes referred to as ‘quickie divorce’, ‘instant divorce’ ‘speedy divorce’ or ‘fast-track divorce’. Some online providers will use these enticing terms to make their services sound deluxe/premium. Such providers tend to hide behind the fact that they are neither regulated by the SRA and use legally qualified staff.

Other factors that will delay the legal process is how long it takes for each party to sign and return the required forms.

Note: – We will always try and complete your divorce/civil partnership dissolution, and associated services such as a consent (clean break) order, as quickly as possible. However, the government’s austerity measures and budget cuts, reductions in Legal Aid and widespread reform of the justice system have increased backlogs (called arrears) in the workloads of courts. This means that the estimated time for completing a divorce/civil partnership dissolution is now extended in many areas.

There has been upheaval caused by Family Law court changes which have resulted in inefficiencies and delays. At present, therefore, court delays may be expected to be in the region of 4 weeks. We will endeavour to chase the court on your behalf and enquire as to the expected completion dates so that we can give you more accurate guidelines throughout the process.

What documents do I need to start divorce proceedings?

All you need is your marriage/civil partnership certificate. If you cannot locate this we can assist you in obtaining a certified copy.

If you were marriage or partnership was in a foreign non-English speaking country, you will need your certificate translated in to English (or Welsh) before commencing.

 

What court fees will I be expected to pay?

Court fees are fixed and unless you are eligible for a court fee remission (discount) / exemption.  At the time of writing (Jan. 2019), court fees are as follows:

  1. DIVORCE £550
  2. CONSENT (CLEAN BREAK) ORDER £50

If you have a low disposal income or receive DWP benefits you may be eligible for an exemption or part remission of court fees. Please contact us directly for more details.

For more information go to HMCTS Court fees and find the right court or tribunal.

See Can I receive help with court fees? and Can I receive Legal Aid?

 

Can I receive help with court fees?

If you are eligible.

If you are on a low income or receive DWP benefits – you may be entitled to a fee exemption or remission (means-tested) using the HM Courts & Tribunals Service (HMCTS) remission system. You will need to complete a remission/exemption EX160A form for each court fee you apply for. Any supporting evidence must be given to the court on submission of your EX160A form. Your application will be refused if insufficient evidence is provided.

It is advisable that you read EX160A HM Court &Tribunal Service– How to apply for help with fees

  1. You will receive a full exemption of the court fee if you are in receipt of one of the following benefits from DWP or HMRC. For more details see HMCTS form EX160A.
  • Income Support (evidence from DWP);
  • Income-based Jobseeker’s Allowance (JSA) (evidence from DWP);
  • Universal Credit with gross annual earnings of less than £6,000 (evidence from DWP);
  • State Pension Credit – Guarantee Credit (evidence from DWP);
  • Income-related Employment and Support Allowance (ESA) (evidence from DWP);
  • Scottish Civil Legal Aid (not Advice and Assistance or Advice by Way of Representation).
  1. You will receive a full remission of the court fee if your annual income before tax and other deductions (gross annual income) is below a certain amount. For more details see HMCTS form EX160A HM Court &Tribunal Service– How to apply for help with fees
  1. You will receive a full or part remission of the court fee based on the money you receive and the money you can claim as spent each month (monthly disposable income) and is based on a pre-set sliding scale. For more details see HMCTS form EX160A.

For point (1), (2) and (3) see HMCTS form (EX50) Civil and Family Court Fees, link EX160 Application for a fee remission, and Apply for help with fees and Tribunal Fees – Do I have to pay them?’ and EX160C ‘Extended Table of Contributions – to be read in conjunction with Court and Tribunal Fees – Do I have to pay them?’ (EX160A).

Please send a cheque to us and made payable to ‘HM Courts & Tribunals Service’.

Note: – If a cheque is returned the court will use a third-party collection agency to collect any outstanding money owed to it. It will also mean that your petition is rejected.

See Can I receive Legal Aid?

 

Can I receive Legal Aid?

This depends.

On 1 April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. A whole host of family matters were removed from the scope of legal aid.

As a consequence of this act, almost no legal aid is available within family law, e.g. family disputes involving divorce/civil partnership dissolution/judicial separation, financial matters, child residency, or residency disputes, in England and Wales UNLESS it falls within the scope of the scheme i.e. domestic violence and forced marriages. You must meet the restrictive criteria set by the Legal Aid Agency and are the victim of domestic abuse or have issues regarding child protection, to receive then legal aid.

To start the process of applying for legal aid, see GOV.UK Check if you can get legal aid

Note: – You may have to repay your legal aid bill after settlement, e.g. property or financial settlement.

 

Are services applicable under Scottish law?

No. However, we do have plans to offer Scottish family law expertise.

We only advise on and provide legal services that are applicable under English Law. That is: those within England and Wales (including common travel areas such as the Channel Islands, the Isle of Man or the Republic of Ireland).

 

Can I still get divorced even if my spouse tells me that they will not co-operate with the forms and will be obstructive?

The basic rule is that a divorce/civil partnership dissolution petition/application must be served upon the other party (the ‘respondent’ and any ‘co-respondent’) so that s/he is made aware of the proceedings, and can decide whether or not to defend the application to dissolve their marriage/civil partnership. The respondent is granted 7 days to acknowledgement receipt of the petition.

If the respondent indicates to you that they won’t co-operate and fails to return the Acknowledgment of Service (an important procedural document) form to the court, there are a number of options open to you. You application will stall until this stumbling block is overcome. We will be able to assist you.

Generally, there will be additional cost implications if a respondent fails to comply and so it is important to let us know quickly so that we can help and advise you as to the best way forward. There will be an additional charge for this service, which isn’t covered by your fixed-fee service.

See What do I do if my spouse/civil partner threatens to oppose (DEFEND) the divorce/civil partnership dissolution if I apply for one?

 

After my divorce do I need a ‘Change of Name Deed’ to change my name?

No

There is no legal requirement in law for a Change of Name Deed (also known as Deed of Change of Name, and commonly referred to as a Deed Poll). However, many organisations, e.g. banks, building societies, identity and password services or DVLA insist on seeing the Deed to formally record the change, even though a decree absolute or final order is all the proof you require.

For the inconvenience that it can cause, it makes sense to have a Change of Name Deed carried out. We charge a small fixed fee of £60 (inc. VAT) for this service.

Please contact us if you have any questions, or alternatively please purchase our fixed fee Change of Name Deed service.

123 Divorce,
Regus House,
Malthouse Avenue,
Cardiff Gate Business Park,
Cardiff,
CF23 8RU
0333 123 1 123

123 Divorce is the trading name and the registered trademark name of 123 Divorce Limited.
123 Divorce limited is a limited company registered in England & Wales – registration number – 08097259.
123 Divorce Limited is authorised & regulated by the Solicitors Regulation Authority (654860).
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