Can I defend a divorce?

Divorce | 27 Mar 2020 0

Whilst it is possible to defend a divorce, the reality is, is that it is very hard and almost impossible to get a successful outcome. You have to think very carefully about what you will ultimately achieve and what your goal is.

The narrowness of our fault-based divorce laws means that one party must either take and accept blame or have long periods of separation before a marriage can be legally dissolved. The momentum of the no-fault divorce movement is certainly increasing but for now, that is not an option for separating spouses to cite.

What is a defended divorce?

Your spouse has issued a divorce petition either at court or online. Once processed, the petition will be sent to you together with an Acknowledgment of Service form. This document has to be completed and signed by you and returned to the court.

Within the Acknowledgment of Service form, the questions will be asking whether you intend to defend the petition. If you wish to defend it then you have to tick yes. You need to be aware that there are strict timelines within which you have to say that you wish to defend and then return the form.

What happens if I defend a divorce?

The court will receive your form then note that it is a defended divorce petition. What usually happens is that a short hearing will then be listed before a Judge to ask for further details and possibly arrange the filing of evidence in the form of statements before listing the matter for a contested hearing. At that contested hearing a Judge will make a decision as to whether the marriage should be dissolved.

How long does a defended divorce take?

On average, a defended divorce may take between 6 – 9 months but it depends on the complexity of the case and any court delays. 

What is the cost of a defended divorce?

It is important that you think at the outset what your goals are. A defended divorce petition can cost a significant amount of money if you are legally represented.

Also at the end of the day if you are unsuccessful then the court can, and probably will make an order for costs against you to pay your spouse’s costs. You can read more about divorce costs here.

Is it worth defending a divorce?

Defending a divorce basically means that you are saying that the marriage is not at an end. The difficultly for any defence is that a judge hearing the case will be faced with one person who says that the marriage is over and the other person saying it isn’t.

Clearly it takes two to make a successful marriage work, which is why I mentioned at the outset it is possible to defend a petition but hard to have a successful outcome.

The recent case of Bidaki v Najafabadi reminds us of the futility of contesting divorce proceedings. Whilst the Court of Appeal judgment did not strictly speaking deal with it, 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? 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:

  • 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 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 divorce lawyer – if you have not done so already.

How do I defend a divorce on grounds of unreasonable behaviour?

Defended petitions are very very rare, fewer than 1% of divorces are defended each year according to recent research by the University of Exeter. What we do see more of in practice however is where a spouse has for example issued a petition based on behaviour and then the other party objects to those behavioural grounds or feels very strongly that they have grounds themselves to have issued the petition. 

What can then happen is that you can indicate on the Acknowledgement of Service that you wish to defend the petition but then issue your own cross-petition putting your allegations of behavioural in your own petition before the court.

Ultimately many clients take the view that the marriage is at an end and given the fact that it has no implications whatsoever with regards to arrangements for children or finances as to who issues the petition and who is the Respondent, then petitions usually proceed undefended. 

Most, if not all, Respondents deny behavioural allegations against them within the Acknowledgment of Service and that forms part of the court record indicating that you accept the marriage is over but do not accept the allegations made.

Are there any effective strategies I can use to defend a divorce?

Actually, there are. In order for a Court in England and Wales to be satisfied that two spouses are entitled to have their marriage legally dissolved, they are obliged to plead that the marriage has broken down irretrievably and to choose one of five mandatory facts that best fits the circumstances of that breakdown.

Of the five facts available (adultery, behaviour, separation of two years with consent, five years separation without consent and desertion), adultery and behaviour are fault-based that can carry costs consequences. In other words, the petitioner has the option to state that because of his or her spouse’s behaviour or adultery, that defaulting person should pay the legal costs associated with issuing the divorce suit.

The behaviour of the other spouse is the most common fact cited as the two separation facts (either two or five years) require the spouses to spends periods of time apart and many people seeking a divorce are unwilling to wait for that long. Desertion is an old-fashioned and rarely cited fact and adultery must be proved, which evidentially, can be difficult to achieve if the unfaithful spouse denies the allegation of infidelity. Regrettably, there is no option of citing a no-fault divorce i.e. a divorce requiring little or no period of separation and no blame being attached to the reason for the marriage breaking down. A “quickie divorce”, seemingly the privilege of many a celebrity divorcee, is a complete misnomer and it is not possible to simply inform a court that both parties have come to a mutual decision that the marriage has run its course.

The consequence of this is that to be able to issue a petition immediately, either adultery or behaviour are the only two available grounds that naturally means pleading fault based particulars that can be inflammatory in nature, exaggerated, taken out of context or in some instances, completely untrue. The narrowness of our fault based laws compels a person to blame the other spouse to prove an irretrievable breakdown of a marriage and is in direct conflict with the promotion of an amicable and conciliatory approach that the various family law protocols and our regulatory bodies encourage. The knock-on effect of this is that it can make the separate resolution of children and financial matters more difficult to achieve.

At Stowe, we are experienced family specialists who recognise that navigating through the choppy waters of a divorce is a hugely stressful experience. We realise that it will be very difficult for a client to be expected to try and contain raw emotions when their lives as they know it, be that where they will live, where their children will spend their time or whether they will have enough money in the short and long term, will be difficult concepts to comprehend.

What does happen if a client is the recipient of a highly charged divorce petition (spouses are representing themselves more often these days and will not understand or be aware of the family law protocols) or the pleadings are simply untrue?

A practical and cost-efficient approach is taken at first instance because a sensible client should invest their legal costs budget in the resolution of future financial or children issues. There are four sensible tactics to employ if this situation arises:

1. If the divorce petition is in draft form and has not been issued at court, then we will certainly seek to robustly negotiate that any unnecessarily inflammatory or untrue pleadings are removed before it is issued. The Family Law Protocol encourages this.

2. If the divorce petition has already been issued at court and processed, then it is open to invite the petitioner to agree to amend the divorce petition and remove those pleadings but this will incur a court fee (presently £95) and additional costs (if represented) to draft and prepare the amendments. This rarely occurs.

3. A common option is to file an acknowledgement of service form confirming that a divorce petition will not be defended but this is conditional upon a supporting statement that is attached to this form. Such a supporting statement will challenge any untrue particulars or will contextualise any outlandish allegations. The skill of the solicitor will be to draft such a statement to ensure that the respondent client’s objections are duly noted and not overdone so as to unwittingly result in a court concluding that the divorce is, in fact, being defended. The attractive feature of this option is that the divorce can progress undefended, legal costs will be kept to a reasonable level and the respondent gets an opportunity to redress the balance to some degree of what will be a one-sided account of why the marriage broke down. The other compelling feature of filing a statement in support is to evidentially address any unfounded allegation of financial misconduct or child welfare that could have repercussions in separate disputes about matrimonial finances or child arrangements. It is, therefore, crucial to seek independent legal advice before completing an acknowledgement of service form. A wary client should not be fooled by the apparent simplicity of this form and it is important to get this right as it lays the foundations for when a judge will come to review the documentation and to consider whether the spouses get permission to have their marriage dissolved or not.

4. The final option is to defend a petition but this is incredibly rare (recent records show that only a handful of divorces are defended each year). This is a specialist and very costly procedure and the system is designed to keep defended petitions to an absolute minimum. Having said that, in a recent and well-publicised case of Owens v Owens [2017] the husband sought to defend a behaviour petition that his wife issued. The judge found in his favour which potentially means that the wife will remain locked in a loveless marriage until she is able to petition once a period of five years has lapsed. Thankfully she issued an appeal against this decision. The decision of the Supreme Court is awaited.

Frankly, if one spouse is desperate to exit what they perceive to be an unhappy marriage, it is ultimately, a futile exercise to prevent that from occurring. What is essential is that you exit your marriage with dignity and with as little damage as possible.

Get in touch 

If you would like any advice on defending a divorce or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers here. 

Lesley is the Managing Partner of the Stowe Family Law Wilmslow office. She has advised and represented clients who are going through the divorce process, those who have not yet been married but need advice on relationship breakdowns and clients who are not married yet wish to bring financial claims against a partner over their children. Lesley’s experience includes cases featuring significant capital and income. She is comfortable dealing with business structures and valuations, trusts and different types of pensions.

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