Getting divorced

If you don't have any children under 16 and you agree about how to deal with your money and property you can use the DIY divorce procedure. You don't have to use a solicitor so you can keep the costs of the divorce low.

You might make a voluntary agreement about money and property issues between yourselves. You can use family mediation and collaborative practice to help you make an agreement. It's important to think about what you agree to. You can't ask for maintenance, a lump sum of money, or a transfer of property when you apply for a DIY divorce. 

If you need to sort money and property issues before you apply for a DIY divorce you should get legal advice. A solicitor can draw up a legally binding agreement. After the agreement has been agreed and signed by you and your partner, you can apply for a DIY divorce.

If you don't agree about how you'll deal with your money or property, you need to use the ordinary divorce procedure. 

Children under 16 include children of both of you, adopted children, step-children and any children who have been treated as part of the family. It doesn't include foster children.

You won't be able to use the DIY divorce procedure because the court will want to make sure there are arrangements for the care and support of the children.

You'll need to use the ordinary divorce procedure. You'll need a solicitor for the ordinary divorce procedure so it'll be more expensive than a DIY divorce.

For a marriage to be legal, it must meet certain conditions. For example, you and your partner must both be over 16 when you marry and you must not already be a civil partner or married to someone else. If your marriage doesn't meet one of these conditions, the court can end the marriage by granting an annulment (called a decree of nullity). For more information about conditions you must meet to marry, see Getting married.

When the court grants an annulment, it may say that your marriage is:

• void - meaning, in effect, the marriage never existed, or

• voidable - meaning the marriage was legal at the time it was registered but it isn't legal any longer.

Whether the court will say your marriage is void or voidable depends on the circumstances.

If you have children, the court will not grant an annulment unless it is satisfied about the arrangements for the children. For more about children, see Children at the end of a marriage.

You will need to get legal advice if you want to apply for an annulment. You might get financial help with your legal costs.

If you both agree to the divorce, the court will look at the paperwork that's been submitted by the pursuer's solicitor. It's likely to include a summons (or initial writ) and the sworn statements (affidavits) made by the pursuer and any witnesses.

If you have children, the court will need to be satisfied that you've made satisfactory arrangements for them. The court may want to discuss the arrangements and possibly meet the children if they are old enough.

A divorce which you both agree to can take up to six months if there are no children or money issues involved. It can take longer if children are involved and the court isn't satisfied with the arrangements being made for them. For more information about arrangements for the children, see Children at the end of a marriage.

When the court agrees to grant the divorce it issues a divorce certificate called an extract decree of divorce.

If you start divorce proceedings and your partner doesn't agree about the grounds for divorce or arrangements for children or property they will have to send a Notice of Intention to Defend to the court when they first receive the initial writ from the court.

When the divorce is based on irretrievable breakdown, the defender has to say why they don't agree that the marriage has broken down. There is likely to be a court hearing for a judge to decide whether the marriage has broken down irretrievably.

Even if the court agrees that the marriage has broken down, it has to be satisfied that you've made satisfactory arrangements for any children. They may want to discuss arrangements about the children and possibly meet them if they are old enough. For more information about arrangements for the children, see Children at the end of a marriage.

If the court agrees to grant the divorce, it'll issue a divorce certificate called an extract decree of divorce.

A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the home or speak to neighbours and friends. 

If one of you doesn't agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.

If your partner has been abusive towards you or your children, you should get specialist help.

A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex. If you or your partner has had a sexual relationship with someone else of the same sex it's not technically adultery but is likely to be seen as evidence of irretrievable breakdown.

The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it's satisfied that the marriage has irretrievably broken down and the other partner could no longer live with the partner who has committed adultery. There is no minimum period that you have to be married before a divorce action based on adultery may be started.

If you both agree to the divorce, the court will usually only need statements and details of the adulterous sexual relationship. If one of you doesn't agree to the divorce, proof will be necessary and this may be difficult and expensive to get.

If you have lived apart (been separated) for one year and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The one year of living apart will still be considered as continuous even if you've actually got back together for up to six months within that time. The six month period of being back together can't be used to count towards the one year of living apart. For example if a couple separates in January, gets back together in April but splits again in September the first three months of separation still count towards the year apart.

Separation may be used as a ground for divorce even when you and your spouse live in the same home but only if you're no longer living as a married couple and effectively lead separate lives.

If you have lived apart (been separated) for two years continuously, you can apply for a divorce without your partner's agreement. A court will usually agree to a divorce if you've been separated for two years.

Separation may be used as a ground for divorce even when you and your spouse have lived in the same home but only if you are no longer living as a married couple and effectively lead separate lives.

A transgender person who has an interim gender recognition certificate can end their marriage on this ground. They must apply to a Gender Recognition Panel. There is more information about applying for a gender recognition certificate on the GOV.UK website.

The court can make a residence order in favour of:

• one parent - this means that the child must live with that parent

• both parents - one residence order can be made for both parents, even if they are not living together. This is like joint custody. The order will say how much time the child will live with each parent

• a third person - for example, a grandparent.

The court will normally expect you and your partner to make your own arrangements about maintaining contact with your children. The court will only consider making a court order if you can't agree or there are concerns about a parent having contact with a child (for example, because the parents are divorcing as a result of domestic abuse).

The contact order may include conditions. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.

A court can make an order called an interdict to prevent one parent from doing something that the court thinks is not in the child’s best interests. 

A court can make an order about a specific issue that a child's parents cannot agree about, for example, religious education.

Agreeing financial support for each spouse

If you both agree to financial support, this is called a voluntary agreement. It can be written down or it could be a verbal agreement.

You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children's clothing and holidays.

Before you agree on a package of financial support, you should get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.

Court orders for money from a former spouse

You can apply for a court order for financial support at the end of a marriage. The court will consider all financial circumstances of both partners, including pension arrangements.

A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.

You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called clawback. Make sure your solicitor explains clawback properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.

Agreeing financial support for children

If you both agree to financial support, this is called a private or family-based arrangement. It can be written down or it could be a verbal agreement.

You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills, or pay for the children's clothing and holidays.

Before you agree on a package of financial support, it may be useful to get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.

Read more about arranging child maintenance payments.

Child Maintenance Service (CMS)

If your marriage has ended and the children are living with you, you can use the Child Maintenance Service (CMS) to get financial support for your children. However you don't have to use the CMS if you don't want to.

A joint tenancy means that all of the tenants named on the tenancy agreement are jointly and solely liable for the rent. This is known as joint and several liability.

This means that if the other joint tenant leaves and stops making payments towards the rent, the landlord can ask you to pay the full amount. That's why it's important to keep paying the full amount, otherwise you may be evicted.

In some cases, a joint tenant can end the joint tenancy by giving notice to the landlord. If you want to stay in the property you'll need to make sure this doesn't happen or if it has happened, you can negotiate with the landlord. Your landlord may be able to give you a new tenancy in your name only. If you're in this situation you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. Find out more about the advice options we offer. 

If a tenancy is in the name of your married partner, they'll be liable to pay the rent for as long as the tenancy continues. If the rent isn't paid and arrears build up, the landlord may take action to evict you.

If your ex-partner is no longer paying any rent, you should negotiate with the landlord to pay the rent because you have the right to do so. If the landlord won't accept the rent you should get advice straightaway. If there are arrears you should also get advice about how to pay these off if you want to stay in the home.

If you're in this situation you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. Find out more about the advice options we offer.