Defending Divorce Proceedings
Defended divorces are rare and are generally discouraged for the following reasons:
- The presentation of a divorce petition is a fairly clear indication that the marriage has broken down;
- Defending the proceedings significantly increases the complexity and costs of the case;
- Defending the proceedings is likely to increase animosity between the parties;
- Who divorces who and on what basis is immaterial for the purpose of the proceedings; the petition is simply a means to an end.
When are defended divorce proceedings appropriate?
In certain circumstances, defending divorce proceedings may be in your best interests:
- Defending against serious false allegations – In the most serious cases, these allegations may have implications for child arrangements or financial remedy proceedings (for example, if the petitioner alleges the respondent has abused the children or has dissipated the vast majority of the matrimonial assets). If the petitioner refuses to amend the petition to include different particulars or to rely on a different fact, the respondent may need to defend the proceedings to reply to the allegations, or hopefully persuade the petitioner to drop the allegations;
- Defending so that the respondent can cross-petition – If the petitioner refuses to amend particulars that contain false allegations, the respondent may wish to issue a cross-petition, requesting the court to grant him or her a divorce for the reasons set out in that cross-petition, which may or may not be based on the same fact as the original petition;
- Defending where the respondent considers the petition is presented on an incorrect jurisdictional basis – For example, the petitioner may have stated that both the petitioner and respondent are habitually resident in England and Wales, but the respondent disagrees. This may have significant ramifications for where the divorce and any subsequent financial remedy proceedings are heard.
When are defended divorce proceedings inappropriate?
Defended proceedings should be the exception rather than the norm. Clients may erroneously think they need to defend the proceedings when their complaint is not that the petitioner wants a divorce, but with one aspect of the proceedings, such as the facts on which the petition is based and/or a claim for costs in the petition.
As the respondent, it is possible to state that you do not agree to the facts stated in the petition, however you are in agreement with the divorce proceeding. You can also liaise directly with the petitioner or the petitioner’s solicitors in relation to the legal costs and agree who will pay for them prior to returning the Acknowledgment of Service. Ultimately, if you are still in dispute about who should be responsible for legal fees the Judge will decide who is to pay the costs at a cost hearing.