For many couples, being told that getting divorced is going to take them a minimum of 26 weeks is heartbreaking. Having made the (often difficult) decision to get divorced, they want it to be sorted out as quickly as possible. In fact, in some cases, getting divorced will take significantly longer than 26 weeks, especially if court proceedings are required to resolve disputes over jurisdiction, children or finances. So why does it take so long? We spoke to Daisy Minns Shearer and Rachel Peirse at The Divorce Surgery to find out.

How long does a divorce in England and Wales typically take to be finalised?

The divorce application process takes a minimum of 26 weeks. It is a process that requires two court orders: the Conditional Order (which can be applied for 20 weeks after the application is submitted) and the Final Order (which can be applied for 6 weeks and one day after the pronouncement of the Conditional Order).

However, very often it will take a lot longer than 6 months to get divorced in England and Wales. The main reason being that a divorcing couple will also need to resolve their financial claims against each other. The advice is very often that they should not apply for the Final Order in the divorce application, until they have a Financial Order setting out what the financial arrangements will be.

If a couple can’t reach an agreement on finances, court proceedings will be needed to resolve these. It’s widely publicised that the courts in England and Wales are overwhelmed, so if couples end up in court it’s likely that it will take at least one, if not two years before the final order in a divorce is obtained.  

There can be other issues that delay a couple getting divorced. For example, if there is a dispute as to where they should divorce, that dispute will need to be resolved (often with several court hearings to take place) before the divorce application can progress.

Is there any way that times can be cut down?

a. For the divorce application, unfortunately not.

b. For resolving financial claims, yes. Generally speaking, a couple will be able to finalise their divorce much more quickly if they can find a way to reach an agreement outside of the court process. That might be through discussions between themselves or their solicitors/representatives, at round table meetings, mediation, co-parenting consultations, One Couple One Lawyer services or private hearings (Private Financial Dispute Resolution Hearings and Arbitration are examples) as suits their circumstances best.

Are there any steps individuals can take to ensure their divorce process proceeds as smoothly and quickly as possible within the 26-week framework?

Small details can make a huge difference. For example, it’s crucial to make sure that all of the information that’s provided in the divorce application is correct. If the court returns the application for any reason, that will cause a delay.

Couples should also be aware that the divorce application won’t simply proceed on its own. They (or those representing them) will need to apply for both the conditional and final orders, as soon as they are invited to apply by the court (if they are to keep within the 26 week timeframe). There may also be a delay of a few weeks once they have applied for the conditional order, before it’s pronounced (which still happens in open court, although no one needs to attend). That might push back the date on which they can apply for the final order.

What are the key stages in resolving financial matters during a divorce?

Whether a divorcing couple is in court proceedings or not, it’s essential to agree on a timetable to work to for resolving their finances, for each of the stages in the process.

1. The first stage is to exchange disclosure, usually with a Form E. The Divorce Surgery has created an award-winning tool to help those engaging us to prepare their Forms E. With our tool, individuals can complete their Form E themselves, with guidance from our solicitors. This often speeds up the disclosure stage and saves costs. However, those in other processes may instruct solicitors to prepare their Form E on their behalf.
2. Once disclosure has been exchanged, it is scrutinised until there is sufficient disclosure for a judge to determine the outcome of the case or for the couple to feel confident in reaching an agreement between themselves. How long this part of the process takes will depend on how complex the issues are and how much trust there is between the couple.  At The Divorce Surgery, we reduce the time this stage takes by getting a barrister to advise the couple together at a Disclosure Session, very shortly after disclosure has been exchanged. The barrister will set out at the Disclosure Session what additional information they will need in order to advise on the outcome and what level of disclosure is proportionate. The barrister will then advise at an Advice Session what outcome they consider is likely, which they do as if they were sitting as a judge.
3. The final stage is either reaching an agreement (often with assistance from a third party, such as a mediator, private judge or arbitrator, or a single lawyer for the couple) or getting a judgment in court. However the financial settlement is arrived at, it is then put into a court order and lodged at court for a judge to approve. After that, the financial settlement can be implemented and the Final Order in the divorce can be applied for.

Why is it quicker to reach a financial agreement away from court?

Not every couple will be able to reach an agreement in respect of their finances without court intervention. There may be issues about disclosure or jurisdiction or a history of abuse that means the court is a needed and valuable resource. However, where possible, court proceedings should be avoided – which is the very clear message from The President of the Family Division, Sir Andrew McFarlane.

The difficulty is that the courts in England and Wales are overwhelmed. Covid, the rise of litigants in person and limited resources are all (still) causing delays, which means that couples can wait a very long time to have their cases heard. Data from 2019 suggests that it takes between 60 and 90 weeks for a financial case to reach a final hearing (depending on which region it is in).

These timescales have been a significant driver in the very recent changes to the Family Procedure Rules, which govern family law in the UK. There is now a real push for couples to engage in Non-Court Dispute Resolution (NCDR), and family court judges now have the power to adjourn cases until a couple has tried NCDR and to make costs awards against a party who is resistant to NCDR. In essence, NCDR is any method to resolve a dispute other than through court proceedings. It includes One Couple One Lawyer services like The Divorce Surgery, also mediation, arbitration, evaluation by a neutral third party and collaborative law.

It is widely recognised that where there is a delay in reaching a financial settlement while a court date is awaited, that impacts on the couple and any children of the family. No one can move forwards beyond the divorce, and very often relations between the couple can deteriorate significantly as a consequence.

When a dispute is resolved outside of the court process, there are not the same issues with delay. At The Divorce Surgery, our aim is to expedite couples to the final stage of our process, ensuring they receive joint advice from a lawyer on the financial settlement outcome within 12 weeks, and on child-related disputes, within 4 weeks.

You mentioned prioritising providing advice relating to children. How do delays affect cases involving children?

Most couples will resolve any issues they have concerning the arrangements for their children between themselves or with the help of an NCDR practitioner. However, many will end up in court. The Nuffield Family Justice Observatory is researching the different journeys families are experiencing in private children law cases in England and Wales each year, and have established (from Ministry of Justice data) that over 50,000 new cases started in 2022, involving around 80,000 children, and that the majority of cases are between separating parents in situations where agreement cannot be reached about arrangements for children.

As with financial matters, court proceedings involving children take a long time to resolve. As of June 2023, it is taking an average of 47 weeks for private children law cases to reach a final order. But that may not be the end of it. One study from 2016-17 suggested that approximately a quarter of all families with a child arrangements order returned to the family courts, of which 63% returned to court within two years of the previous order.  These are bleak statistics, which the Ministry of Justice addressed in a consultation published in January 2024 looking at how things can improve.

While children and financial proceedings are separate, in some circumstances they will be linked, with one set of proceedings being delayed until the other is resolved. For example, if one party is hoping to relocate with the children, the financial proceedings will be delayed pending the outcome of the children proceedings as it won’t be possible to ascertain what the parties’ respective financial needs are until it is known where they will be living. This can delay a divorce being finalised even further, as there is an extra round of litigation for the family to get through before the final order in the divorce can be applied for.

More people are turning to NCDR to resolve children disputes, and although the current position is that judges will not make cost orders against litigants who do not engage in NCDR for children disputes, those who litigate unreasonably do risk a cost order (i.e. an order to pay the other party’s legal costs) being made against them.

What future changes do you foresee in the divorce process in England and Wales, and how might these affect the duration of divorce proceedings?

However, as discussed, the last few months have seen a very big push towards NCDR. This is a huge shake-up in the world of family law in England and Wales. Already judges are putting court proceedings on hold for parties to engage in NCDR and cost-orders for individuals failing to do so will follow.  The impact of the new legislation will have a significant impact on the duration of financial and children proceedings – either shortening them if the couple are able to reach an agreement in NCDR, or elongating them if they return to court after the NCDR process has broken down. Ultimately, this new legislation is intended to deter people from applying to the court to sort out their family disputes, pushing them towards NCDR. If they follow the NCDR path, the time it takes to divorce will be shortened.

There is further potential change on the horizon as the Government has asked the Law Commission to carry out a review of the laws on financial remedies, including whether Matrimonial Causes Act 1973, mirrored in the Civil Partnership Act 2004, is still fit for purpose. The review will look at whether the law is still working to support separating spouses and civil partners and avoid unnecessary conflict, or whether legal reform is required. It’s not yet clear whether this will impact on the time it takes for divorcing couples to resolve their finances, but the scoping stage of the report is due to be published in December 2024.

What is the best advice you have been given, or heard given, to someone going through a divorce?

It’s a process, which can be frustrating at times (even if it’s very amicable), but it will end. Make sure you’ve got the support you need - whether from financial experts, therapists, divorce coaches, lawyers, friends and family.

Conclusion

As can be gathered from our discussion, divorces taking 26 weeks or more are here to stay in England and Wales. This minimum period can extend due to resolving financial matters, arrangements for children, and court backlogs. While many factors remain beyond your control, proactive steps can mitigate unnecessary holdups and streamline proceedings. If you’re unsure about the best approach for your divorce, we encourage you to get in touch. We would be happy to help you navigate the process, ensuring your mental and financial well-being are optimised.

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Mark Estcourt

CEO at Cavendish Family Office

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