Agree on four main things
That your marriage or civil partnership is over.
The (legal) reason that it’s over.
How you will divide your property and possessions.
If you have children, how you will both continue to look after them in the best possible way.
So what’s next?
England and Wales
Firstly, you must have been married or in a civil partnership for more than a year and live in England or Wales.
If you’ve been married or in a civil partnership for less than a year, you can still create a Separation agreement to sort out your property and possessions in readiness for when the year is up. For more information, see Separating from your spouse or civil partner.
Next, agree on why your marriage or civil partnership is over. In English law, marriage or civil partnership fails because it has 'irretrievably broken down'. For more information, read Basis for divorce.
In Scotland, you can bring your marriage or civil partnership to an end within the first year if things haven’t worked out.
Next, agree on why your marriage or civil partnership is over. In Scottish law, a marriage fails because it has ‘irretrievably broken down’ due to one of four grounds or because an interim gender recognition certificate has been obtained by one party. A civil partnership fails because it has ‘irretrievably broken down’ due to one of three grounds or because an interim gender recognition certificate has been obtained by one party. The grounds are as follows:
Your spouse had sex with someone else and you can’t live with them anymore. This ground is not available for a civil partnership.
Your spouse has behaved so badly towards you that you can’t live with them anymore.
You have lived apart from each other for at least one year and you both agree to the divorce.
You have lived apart from each other for at least two years and one of you doesn’t agree to the divorce.
For more information, read Grounds for divorce in Scotland.
The procedure in England and Wales
On 6 April 2022, the divorce process in England and Wales changed under the Divorce, Dissolution and Separation Act 2020. To apply for a divorce you will need:
your and your spouse’s full names and addresses
your original marriage certificate or a certified copy of your marriage certificate (if your marriage certificate is not in English you will also needs a certified translation)
proof of name change if you changed your name since getting married
You can then apply for a divorce, either online or using a divorce (or dissolution) application form D8. If you apply using form D8 you should send one copy to the courts and keep a copy for yourself.
You will need to pay the application fee (currently £593). How to pay depends on how you applied. Some support may be available if you need help paying this fee (eg because you're on benefits or on a low income).
Once you have applied, a copy of the divorce application will be sent to your spouse.
What happens after you apply depends on whether you made a joint divorce application (ie you and your spouse applied together) or a sole application (ie you applied on your own). In both cases, your application will be checked and, if it is correct, you will be provided with:
a notice that your application has been issued
a copy of your divorce application stamped by HM Courts and Tribunals Service (HMCTS)
a case number
If you made a joint application, you will also be provided with an ‘acknowledge receipt’.
If you made a sole application, your spouse will be sent the divorce application and an ‘acknowledgement of service’ notification. This acknowledgement of service notification, in which your spouse agrees with or indicates that they intend to dispute the divorce, must be completed and returned within 14 days.
Conditional and final orders
If you made a joint application or a sole application and your spouse agrees to the divorce, you need to wait 20 weeks before continuing with the divorce, by applying for a conditional order.
If you made a sole application and your spouse intends to dispute the divorce, they will have to submit an ‘answer form’ setting out why they dispute the divorce. This must be a genuine legal reason. You may then have to go to court to discuss the case. If your spouse does not submit the answer form, you can apply for a conditional order after 20 weeks.
Once a conditional order has been granted, you have to wait 6 weeks and 1 day before you can apply for a final order, which finalises your divorce.
Once you receive your final order, your marriage or civil partnership will officially be over. You are legally married (or still in a civil partnership) until you receive the final order and must not marry or form another civil partnership again until after that time.
For more information, read The divorce process.
The procedure in Scotland
In Scotland divorces can be obtained in one of two ways:
The DIY process - this is a simplified procedure available to couples that are in agreement about bringing their marriage to an end and can agree on how to deal with assets and finances. This process is only available where no children under the age of 16 are involved.
The Ordinary process - this process involves the courts and should be used when a couple is not in agreement about bringing their marriage to an end, and cannot agree on how to deal with assets and finances. This process must be used where children under the age of 16 are involved.
The DIY Process
The first step in applying for a DIY divorce involves applying to the Sheriff Court using the appropriate form and paying the relevant fee.
Which form you will need to use depends on whether you are ending a marriage or a civil partnership and on which grounds. The forms can be downloaded from the Scottish Court and Tribunal Service website.
The Ordinary Process
The first step in applying for an ordinary divorce involves serving an Initial Writ (also known as a ‘summons’). The Initial Writ includes the names and addresses of the parties involved in the divorce and the grounds for divorce. It also provides brief details on the relationship including, the date of marriage, the date of separation and the birth dates of any children under the age of 16. It will also provide brief details regarding care arrangements for the children.
The Initial Writ will be drafted and signed by your solicitor (acting as your agent) and then sent to the court to ask for the court’s authority (also known as a ‘warrant’) to serve the Initial Writ on the other party.
When serving this document you will have to pay the relevant court fee.
For more information, read The divorce process in Scotland.