Uncommon Divorce Questions Answered

Setfords Law Published: 12 August 2026, Last reviewed: 12 August 2026, Read time: 10 minutes

Most divorce guides cover the basics: how to apply, how long it takes, how the finances get split. Fewer cover what happens when your situation doesn’t fit the standard pattern. This guide answers four questions that come up less often, but matter a great deal when they do: forcing a partner out of the family home, divorcing someone you can’t locate or who lives abroad, the rules around remarrying, and what a clean break order actually enforces from a legal perspective.

Key takeaways

• Being married gives you home rights to live in the family home even if you’re not on the title deeds.
• Forcing a partner to leave usually requires an occupation order from the court, not just a request.
• If you can’t locate your spouse, the court can allow alternative or deemed service, or dispense with service entirely.
• There’s no waiting period to remarry after your final order, but you’ll need that order itself, not just a birth certificate.
• A clean break order ends future financial claims between spouses, and is difficult to reopen once made.

These situations are less common than the standard “how do I get divorced” questions, but they come up more often than you’d think, particularly when a marriage has broken down acrimoniously or when one spouse has moved abroad. Each has a specific legal route, and getting it wrong can cost time and money.

Can I force my partner to leave the family home?

Not simply by asking. Whether you can require your partner to leave depends on your legal rights to the property and, if they won’t go voluntarily, on persuading a court to make an order.

What are home rights? If you’re married or in a civil partnership, you have a right to live in the family home for as long as the marriage or partnership lasts, regardless of whose name is on the title deeds. This is sometimes called matrimonial home rights, and it means a non-owning spouse can’t simply be locked out or asked to leave without a court order.

Because of this, being on the title deeds doesn’t automatically give you the power to remove your spouse from the home, and not being on the title deeds doesn’t mean you have no right to stay.

What is an occupation order? An occupation order is a court order made under the Family Law Act 1996 that can regulate who lives in the family home, or exclude one party from it entirely, even if that person owns the property. Courts don’t grant these lightly. They weigh up factors including each party’s housing needs, financial resources, the likely effect on any children, and, in more serious cases, the risk of harm if the order isn’t made.

An occupation order is more commonly sought where there’s a safety concern, significant conflict making shared occupation unworkable, or a pressing housing need, rather than as a routine step in every divorce.

Key figures

Family Law Act 1996 (occupation orders and home rights) · Matrimonial Causes Act 1973, s.25A (clean break orders) · Divorce, Dissolution and Separation Act 2020 (no-fault divorce, conditional and final orders)

The Family Law Act 1996 sets out both the automatic home rights a spouse has in the family home and the court’s power to make occupation orders. Section 25A of the Matrimonial Causes Act 1973 requires the court to consider whether a clean break is appropriate whenever it makes a financial order on divorce. The Divorce, Dissolution and Separation Act 2020 introduced the no-fault divorce process, replacing decree nisi and decree absolute with the conditional order and final order.

(These are the general legal frameworks, not guaranteed outcomes for any individual case. Confirm how they apply to your specific situation with your solicitor.)

What if I can’t locate my spouse, or they live abroad?

Not being able to find your spouse, or them living overseas, doesn’t stop a divorce, but it does change how the paperwork gets served.

If you can’t locate your spouse. Divorce papers normally need to be formally served on your spouse. If you genuinely can’t find them, you can apply to the court for permission to serve by an alternative method, for example by email, social media, or to a last known address, or in some cases ask the court to dispense with service altogether. You’ll usually need to show the court what steps you’ve already taken to try to locate them.

If your spouse lives abroad. English and Welsh courts can still have jurisdiction to deal with your divorce, generally based on where you or your spouse are habitually resident or domiciled, rather than where your spouse currently lives. Serving papers on someone overseas can involve additional formalities, and where the country in question is a signatory to the Hague Service Convention, service may need to go through that country’s designated authority rather than by post or email alone.

Both of these routes tend to take longer than a standard divorce where your spouse can be served straightforwardly, so it’s worth building extra time into your expectations.

Is there a waiting period to remarry, and can I use my birth certificate?

There’s no mandatory waiting period after your final order before you can remarry. Once the final order has been made, your previous marriage is legally over, and you’re free to remarry immediately if you wish.

What you can’t do is use your birth certificate in place of proof that your previous marriage has ended. A birth certificate confirms who you are, not your marital status. To remarry, you’ll need to show the register office your final order (or, for an older divorce, your decree absolute), which is the document that proves your previous marriage has legally ended.

If you’ve lost your final order or decree absolute, you can apply to the court that granted it for a certified copy before booking your new marriage.

What is a clean break order?

A clean break order ends the financial ties between you and your ex-spouse, so that neither of you can bring a financial claim against the other in the future. Courts are required to consider whether a clean break is appropriate whenever they make a financial order on divorce.

A clean break can cover different things:

• A clean break on income. This dismisses ongoing spousal maintenance claims, so one spouse can’t come back later asking for regular payments, even if their financial circumstances change.
• A full clean break. This goes further, dismissing both income and capital claims, so neither spouse can bring any future claim against the other’s assets, pensions, or property, beyond what was agreed at the time.

Can a clean break order be reopened? Generally not. Once made, a clean break order is intended to be final, and courts are reluctant to unpick it. The main exceptions are where there’s been a Barder event, an unforeseen event shortly after the order that undermines the basis it was made on, or where one party failed to disclose their finances honestly at the time. Both are narrow exceptions rather than a general right to revisit the order if circumstances simply change.

A clean break order doesn’t affect child maintenance, which is treated separately and can’t be excluded by an agreement between the parents.

What slows things down

Trying to serve papers without exhausting other options first. Courts generally want to see that you’ve made a genuine effort to locate or serve your spouse before agreeing to alternative service or dispensing with it.

Assuming an occupation order is automatic. Because these orders can override property rights, courts scrutinise applications carefully, and unsupported requests can be refused or delayed.

Losing the final order or decree absolute. Without it, you can’t prove your divorce is finalised, which can hold up remarriage until a certified copy is obtained.

What helps

Keep records of any attempts to locate or contact your spouse. Emails, letters, and messages showing your efforts can support an application for alternative service.

Get advice before applying for an occupation order. These orders depend heavily on the specific facts, so early advice helps you understand whether your situation meets the bar.

Keep your final order somewhere safe. You may need it again for remarriage, mortgage applications, or other administrative purposes long after your divorce is finalised.

Every one of these situations depends heavily on your specific circumstances, including where your spouse is, what’s on the property title, and what’s already been agreed financially. Speak to our family law team for a confidential, no-obligation conversation about your options.

Common mistakes

1. Assuming ownership decides who can stay. Home rights mean a non-owning spouse can have a right to remain, regardless of whose name is on the deeds.

1. Giving up on service too quickly. Courts expect to see genuine attempts at standard service before agreeing to an alternative method.

1. Turning up to remarry with only a birth certificate. Register offices need proof your previous marriage ended, not just proof of identity.

1. Assuming a clean break order can be revisited if things change later. Outside narrow exceptions like a Barder event or non-disclosure, clean break orders are intended to be final.

When to speak to a solicitor

These situations are more complex than a standard, uncontested divorce, so early advice tends to save time. Speak to a solicitor if:

• You want your spouse to leave the family home and they won’t go.
• You can’t locate your spouse to serve divorce papers.
• Your spouse lives outside England and Wales.
• You’ve lost your final order or decree absolute and need a certified copy.
• You’re negotiating a financial settlement and want to understand what a clean break would and wouldn’t cover.

What to bring to your first conversation

Having the right information ready makes your first conversation with a solicitor far more useful. Gather together:

• Any documents showing who owns or holds the tenancy on the family home.
• A record of any attempts to contact or locate your spouse.
• Details of your spouse’s location, if known, including any address abroad.
• Your decree absolute or final order, if you already have one.
• Any existing financial agreement or order from your divorce.

FAQs

Can my spouse stop me changing the locks if they’ve moved out?

If your spouse still has home rights, changing the locks without agreement or a court order can itself cause problems, even if they’ve moved out voluntarily. It’s worth getting advice before taking this step.

Do I need a solicitor to serve divorce papers on an overseas spouse?

It’s not a strict legal requirement, but overseas service involves procedural rules that vary by country, so getting this wrong can delay your divorce significantly. Many people find it worthwhile to get advice specifically on this step.

Can I remarry the same day my final order is granted?

There’s no legal waiting period, but in practice you’ll need time to obtain your final order document and give notice at a register office before a new marriage can take place.

Does a clean break order cover pensions?

A full clean break order can cover pension claims as part of the overall capital settlement, but this depends on what was agreed and ordered at the time. It’s not automatic, so it’s worth checking exactly what your order includes.

About the author:

This article is general information about divorce in England and Wales and is not legal advice. The law can change and every situation is different, so please speak to a qualified family law solicitor about your circumstances. If domestic abuse is a factor in your situation, support is available through the National Domestic Abuse Helpline on 0808 2000 247.