Is it better to be the petitioner or the respondent in a divorce?

Divorce | 30 Mar 2020 0

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We are often asked by our clients, as we start the divorce process, is it better to be the petitioner or the respondent in a divorce? In the main, there is often very little advantage or disadvantage to being the petitioner as opposed to the respondent. However, there are some points worth considering. 

Family lawyer, James Scarborough, from our St Albans office joins us on the blog to explain if there is an advantage to being the petitioner to a divorce.

Respondent v Petitioner: Who does what? 

The petitioner is the party responsible for completing the first document that gets sent to the court – the petition (now also known as the divorce application). The other party inevitably then becomes the respondent.

Typically, it is the petitioner that will complete the vast majority of the paperwork in the divorce process. The respondent normally only needs to prepare and send to the court one document – the acknowledgement of service. 

Is there an advantage to being the petitioner to a divorce?

There is often very little advantage or disadvantage to being the petitioner as opposed to the respondent. However, it is worth considering the following:

As the petitioner is the party effectively bringing the divorce, unless they are relying upon the parties having been separated for more than 2 years, they will have to assign some form of blame to the respondent. 

Although legally, this will almost certainly have no repercussions, some do take the view that, out of principle, they would prefer to be the petitioner.

Can the respondent stop the decree absolute?

The respondent has the ability to defend the divorce, should they wish. This essentially means that they do not accept that a divorce should take place, but defended divorces are extremely rare. Any financial arrangements are addressed separately. 

Can the respondent delay the decree absolute?

The speed at which the divorce proceeds (or doesn’t, as the case may be) is largely reliant upon the petitioner, given that they are responsible for applying to the court for each stage. Having said that, the respondent can cause delays to the divorce near the start of the process.

If this is something you are concerned about, then you should raise it with your solicitor during your first meeting.

Who pays for the divorce, the petitioner or respondent?

The petitioner has the option of asking the court to make an order that the other party pays their legal costs relating to the divorce. They could, of course, also request that the costs are divided equally, or even just the court fee is shared.

When the divorce is not due to a period of separation, a judge will invariably automatically make the order the petitioner has sought. The issue of enforcing a costs order, given the additional time and fees involved, is another matter entirely.

Does it make a difference if you are the respondent or petitioner if you want to choose what country your divorce takes place in? (subject to eligibility) 

If there is a question of jurisdiction (in which country the divorce should take place), then there may be a race to issue the divorce first, in your chosen jurisdiction. 

Given the disparity in law between different countries, this may have a material impact on the financial arrangements that follow. In those circumstances, it may well be advantageous to be the petitioner, so that you ensure your chosen jurisdiction presides. Specialist international family law advice should be sought if that is a concern.

Get in touch

Generally, there is little to be gained or lost from being the petitioner in the divorce, but that is certainly not always the case and so this should be one of the first issues addressed with your solicitor.

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

James is a Partner in our St Albans office. He studied at the University of Sheffield and the College of Law in London.  James has experience in a breadth of family law issues, including divorce, finances, unmarried partners and children disputes. He takes a practical approach to his cases and aims to provide clear, straightforward advice. As a member of Resolution, amicable agreements are at the forefront of his approach, but he is equally adept at progressing matters by way of court applications where appropriate.

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