Is there any point in defending a divorce? by John Bolch

Divorce|February 10th 2014

The recent case of Bidaki v Najafabadi reminded me of the futility of contesting divorce proceedings. Whilst the Court of Appeal judgment did not strictly speaking deal with it, the case involved that rare thing nowadays: a contested divorce hearing. I won’t go into the details here, but the result of the hearing was (as it almost always is) that the court found in favour of the petitioner, and pronounced a decree nisi in her favour.

So, is there any point in defending a divorce? After all, it is extremely unlikely that you will be able to prevent the divorce going through if your spouse is determined that they want the marriage to be dissolved.

The respondent to any divorce proceedings has the right to defend. However, if they do so then the procedure will become a lot more complicated, and therefore the costs will increase hugely (if they fail to stop the divorce going through they are also likely to be ordered to pay the petitioner’s costs). Defending divorce proceedings is therefore not a decision that should be taken lightly.

There are, however, certain circumstances where it might be appropriate to defend the divorce. Perhaps the most common are as follows:

  • Defending as a delaying action. Sometimes, a person may make a spur of the moment decision that they want a divorce, rush off to a solicitor and issue proceedings without giving the matter full consideration. If the respondent does not defend, then the divorce can go through quite quickly. The respondent may therefore choose to defend (usually only temporarily), to give their spouse time to reflect and, perhaps, reconsider.
  • Defending against serious untrue allegations. If the divorce petition contains such allegations, especially if they may have a bearing upon arrangements for any children or the financial/property settlement, then the respondent may need to defend so that they can reply to those allegations, or even persuade the petitioner to drop the allegations (in which case the respondent can then drop the defence).
  • Defending so that the respondent can cross-petition. The respondent does not just have a right to defend the divorce. They can also issue their own cross-petition, asking the court to grant them a divorce. For example, the petitioner may allege that the marriage broke down as a result of the respondent’s unreasonable behaviour, but the respondent may consider that it broke down because of the petitioner’s adultery.

As I said above, defending a divorce can have serious procedural and cost implications. Accordingly, if you are considering defending then you should first consult an expert family lawyer – if you have not done so already.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(16)

  1. JamesB says:

    To get a divorce one party is usually blamed when they have done nothing wrong.

    I suppose the one thing it does do is make divorce look bad and fake at the beginning, which it is.

  2. JamesB says:

    There is no point in defending a divorce as the law stands, I just wanted to make the above point and that more people are avoiding the court and doing sharia court, bin deth etc. instead given the cloudy unfair rulings in family court.

    Personally I think the Scottish law is much better that the dodgy England and Wales law in this matter. At least there the marriage and AR laws are not completely out of date and anachronistic and make some degree of sense and a stab at fairness. The E and W ones just says give the divorce and all the money to the parent with care. That makes no sense.

  3. JamesB says:

    Unless you are very rich and the children can be looked after from small percentage of income, like with Paul McCartney for example.

  4. JamesB says:

    In Scotland they do not have fault based divorce.

    Telling people to accept being called names (unreasonable) in the name of the law is wrong and bad.

  5. JamesB says:

    Although I agree and accept you should not defend divorces as things stand or into the future.

  6. Andrew says:

    If by bin deth you mean the Beth Din, the Jewish ecclesiastical court, you should be aware (1) that they do not purport to deal with matters of divorce finance and children and (2) that the do not let the divorce document issue until there has been a civil decree absolute.

    You should also be aware that no mainstream synagogue in the UK will allow a marriage unless either there has already been a civil marriage before the Registrar or, more usually, without the parties going through the civil process so that the same ceremony is both religious and civil. At the end of it you leave with the traditional Jewish marriage deed (the “ketubah”) and a civil certificate in the usual form. If unfortunately the marriage comes to grief it is the civil certificate which the petitioner has to file at court with the petition.

    To suggest that people are using or can use the Beth Din as an alternative to the civil courts is wrong.

  7. Stitchedup says:

    Andrew, I don’t believe Sharia law is an alternative to civil courts either. If I understand James correctly, people may be agreeing terms amongst themselves according to Sharia law or Beth Din, and perhaps ignoring the settlement element/details of UK family/civil law and just using it to get the marriage officially annulled.

  8. JamesB says:

    Ok, I take it back. I know people who have done in Sharia and also seventh day adventists though. It was not a criticism as I think doing so would be a good thing.

    Also, having a chat with the rabbi on what the settlement should be I would think he would offer an opinion and as most settlements are agreed by both parties, then court although officially stamp it the religion / family / whoever put it together and that will happen more as the laws become more unreasonable.

  9. JamesB says:

    I believe in Israel you can have a civil marriage (with no fault divorce) or a religious marriage (traditional, wihout no fault divorce) and that the vast majority of people there (over 90%) take the modern option with pre nups etc. Just a note as I do know a bit about this subject.

  10. Mathilde says:

    Funny, Din Beth means “a man thing” in Welsh; Dim Beth would be “no thing” . Sums up divorce in a nutshell 🙂

  11. JamesB says:

    You caught me Mathilde, must be the the 50% Welsh in me :-). Sounds nice I think all the ways it is written. English perhaps doesn’t quite sound as nice, more abrupt. Like “Court”, perhaps.

  12. sara says:

    Unreasonable behaviour is now the most common fact on which to prove the ground for divorce
    in England and Wales. In an unreasonable behaviour petition, the Petitioner sets out a number
    of allegations against the Respondent. These allegations might include references to excessive drinking or financial extravagance, for example; but it is worth bearing in mind that the court
    does not insist on really severe allegations of unreasonable behaviour in order to grant a divorce.
    Relatively mild allegations such as devoting too much time to a career, having no common
    interests or pursuing a separate social life may well suffice. Using mild allegations may also make
    it easier to agree a petition in advance with your spouse

  13. Kevin says:

    My wife is divorcing me on grounds of unreasonable behaviour, I take the view-point that it is her perception, but not strictly true and the fact that i feel my marriage broke down as a result of her adultery. My solicitor advises that it would be costly to me to contest the divorce, although he is not strictly a Family Lawyer and specialises more in litigation matters/accident claims etc. So I do not know if I should accept the status quo or seek further advice from another (family specialist lawyer).

    • Cameron Paterson says:

      Hello – solicitor Hannah Atkinson responds below. If you would like advice, you will find the contact details of our nearest office on this page.

      “It is true that contesting a divorce can increase costs and cause delays.
      You mention that your wife has committed adultery and so, it appears you have also reached the conclusion that your marriage has irretrievably broken down. As such, you may consider that defending your wife’s divorce will only bring added stress and costs. That being said, you should also be comfortable with the contents of the allegations contained in your wife’s divorce petition. One option would be to agree amendments to the allegations of unreasonable behaviour to make them less inflammatory. Another option would be to put on record that you deny the allegations but despite this will allow the divorce to proceed undefended, this means you are protected if your wife tries to rely on these allegations later down the line. Of course, there is always the option for you to file your own divorce petition based on your wife’s adultery but she would need to admit it and it could lead to complications if you both try and push through separate divorce petitions. I hope this helps.”

      • Kevin says:

        I accept that she would have to admit the adultery but as someone who had a vasectomy in 2015, finding a receipt in December 2016 for a Morning After Pill with last four card numbers matching other receipts for goods purchased, there would be no reason for her to have purchased it on my account.

  14. Shahab Kidwai says:

    A wife files a petition for divorce in England. The court sends the petition to the husband who acknowledges the petition but is trying to contest the divorce by filing for divorce in Pakistan after 14 days. In Pakistan the husband can divorce by a non- judicial process. It seems that the process cannot be stayed as courti in Pakistan is not involved in issuing the divorce certificate.
    The husband is arguing that the appropriate court is Pakistan as his domicile of origin is Pakistani.
    However, he is citizen of UK and is living in England for the last 17 years. All the factors are evidence that his domicile of choice in England. What are your comments on the above

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