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.