Together or alone: should I apply for a divorce on my own or jointly with my spouse?

The no-fault divorce law introduced in April 2022 introduced a way of getting divorced that had never existed before. For the first time, it was now possible for a couple to jointly apply to the Family Court for a divorce.

Before the new law was introduced, every divorce had a petitioner (now known as the applicant) for the divorce and a respondent. One spouse divorced the other, even in a divorce being sought on the basis that the couple had been separated for two years and consented to a divorce on that basis.

The primary propose of the new law was to remove fault from divorce proceedings. Fault-based divorce (i.e. citing adultery, behaviour or desertion) simply gave a divorcing couple something else to argue about, while making no difference whatsoever to the financial outcome or arrangements for their children. No-fault divorce is designed to reduce the conflict between the parties, so it made absolute sense for the new law to introduce an option for the couple to jointly apply. Instead of one party divorcing the other, they could both apply.

(The same applies for dissolution of civil partnerships and same-sex marriage, but to keep things straightforward, I will only refer here to divorce, husbands and wives),

Instead of there being an applicant  and a respondent, there is instead applicant 1 and applicant 2. There is no seniority implied by the numbers 1 and 2. One party (applicant 1) must start the process using the HMCTS online divorce portal, which then sends the draft application to the other spouse (applicant 2) to confirm that he or she wants to jointly apply.

Are there are any real advantages of one option over the other? if your marriage has irretrievably broken down and you want to divorce, should you start the application on your own or should you jointly apply?

As a general rule, I would advise clients that if they are amicable and co-operative, a joint application might be better.

However, if there are concerns that the other spouse will not be co-operative, a sole application is probably best. It avoids the danger that the other applicant fails to cooperate. Three steps during the joint process have to be taken jointly by the parties; commencing the application, applying for the conditional order at least 20 weeks later, and then applying for the final order at least six weeks after that (and often much later where financial issues need to be resolved first).

If you are a sole applicant, you avoid the danger of any delay and you keep some control over the timetable. However, you aren’t stranded if the other applicant stops cooperating; you can ask the court to convert the joint application to a sole application and then you go ahead without needing any further co-operation from the other applicant (apart from needing him or her to confirm that the divorce application has been received. If they fail to do that, there are things that we can do to prove that service of the now sole application has taken place).

The best reason to consider making a sole application is to control when the final order is made by the court. The final order brings the parties’ marriage to an end. Once they become an ex-husband and an ex-wife, they cease to be eligible for a widow’s/widower’s pension and for bereavement support allowance. Therefore, it is generally regarded as good practice to not bring the marriage to an end too soon, so as to preserve this entitlement for as long as possible; i.e. until after the parties have resolved any financial issues and a financial order has been made by the court.

Where the financial order includes a pension sharing order, it is also good practice to delay the final order application until 28 days after the date of the pension sharing order. This is because that the order comes into effect on the later of either 28 days from the date of the order or on the making of the final order. If, say, a husband obtains the final order and then dies before the pension sharing order is in effect, it will be impossible for the wife to implement the pension sharing order. This is likely to seriously prejudice the wife’s position.

Many people who represent themselves in divorce proceedings have no idea that it is risky to get the final order before sorting out the finances. The portal does not warn them that they should do so first.

In a joint application, if one of the applicants decides they don’t want to to wait and applies unilaterally for the final order, the portal gives 14 days’ notice to the other applicant, asking them if they also want to apply. If they fail to do so, then there can be a sole application for a final order. This may prejudice the other applicant’s position, so he or she can then make an application to the court under section 10(2) Matrimonial Causes Act 1973 for the court to consider his or her financial position after the divorce. If done in time, this has the effect of preventing the final order from being made, but it also means that there is a potentially very expensive court application now underway.

Being the sole applicant gives you the ability to control when the final order is sought from the court. Three months later the respondent can apply for it, but there has to be a hearing at which argument can be made that it should not be granted until finances have been resolved. Such on notice applications are quite rare.

Of course the best reason to jointly apply is to bolster goodwill between the parties, and to make it feel less like one party is being punished by the other. This should make it easier to reach an agreement about financial issues or child arrangements.

15 June 2024

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