I was asked a great question recently by a lady called Veronica. She had finally made the leap to apply for a divorce, but her husband beat her to it and had filed for divorce first. Veronica asked, what is the disadvantage of him applying for divorce instead of me?
The disadvantage of being the respondent in a divorce rather than filing first and being the applicant is that you have less control. Conversely, the advantage of filing first is that you have control over the divorce proceedings. To understand how you have more control over your divorce if you file first, you need to understand the three main stages in the divorce process.
Stage 1. Apply for divorce and the acknowledgement of service
In this first stage, the applicant tells the court that the marriage has broken down irretrievably (it cannot be fixed). The court then sends the divorce application to the respondent to notify them that they are being divorced.
The court wants to make sure that anyone being divorced knows about it. To do this, the court must receive an acknowledgement from the respondent that they are aware of the divorce proceedings. This is known as the acknowledgement of service.
Stage 2. Applying for the conditional order
Twenty weeks after applying for a divorce, the applicant can apply for the conditional order (under the old divorce law, this was known as the decree nisi). An order is an instruction from the court, and a conditional order is the court granting permission to divorce. You are not divorced yet. You are simply allowed to have a divorce if you complete the final step.
Stage 3. Applying for the final order.
Six weeks and one day after receiving the conditional order, you can apply for the final order (previously known as the decree absolute), which ends the marriage.
How does filing first for divorce first give more control?
If you file first, you become known as the applicant in your divorce, and your husband or wife becomes the respondent. They respond to the divorce petition and complete the acknowledgement of service. Once your spouse has answered, you as the applicant, have complete control over the second stage of the divorce process because only the applicant can apply for the conditional order.
What difference does applying for the conditional order make to controlling the divorce process?
A divorce does not deal with finances. To make a legally binding financial agreement, you need a consent order. A consent order can only be sent to the court for approval if you have a conditional order for your divorce.
So imagine a situation where you haven’t reached a satisfactory financial agreement yet. If you are the applicant, you can delay the divorce process by not applying for the conditional order. Your divorce stays in limbo while you sort out your finances. For many, the thought of their life being put on hold is enough to push them towards the negotiation table.
Another benefit of applying first is that it reduces your financial risk. If your spouse is in control, they can push through the divorce even though you haven’t reached a financial agreement. To stop them from finalising the marriage, which can impact pension-sharing rights, you would need to pay solicitors and potentially go to court to stop them, costing you thousands in legal fees.
What about joint divorce applications? Is it riskier than applying first?
You might have heard that you can make a joint application with a new divorce law. If you choose a joint divorce application, you both become applicants, and you are both in control of the process from start to finish because you have to both agree to process through each stage. If you are on good terms and want to, a joint application might be the right choice. It is also possible to transfer from a joint to an individual application if your relationship breaks down.