Contested divorces in the United Kingdom are rare. Statistics have demonstrated that less than 1% of any divorcing couple defend or contest the Divorce Petition. Defending or contesting the divorce is an expensive, time consuming and emotional exercise and can sometimes not achieve the results that was intended.
Some clients may wish to defend their divorce because they are genuinely of the view that the marriage has not broken down and is capable of being saved between the parties or with the assistance of a therapist. Some may enter a defence for tactical reasons connected either with the children or finances. If a party genuinely believes that the marriage has not broken down irretrievably then they have the right to defend the divorce proceedings.
There is a special procedure to be undertaken which I will explain in this article. For the most part, the Court is of the view that once proceedings have been issued by one of the parties and it is demonstrated that the marriage has broken down, that they will in most cases encourage the parties to allow the petition to proceed on an undefended basis.
Given that recently the Government has been advocating that there should be an amendment to the divorce laws to sweep away the whole issue of a fault based divorce so that one party only need give notice for divorce proceedings to be activated, the views of most Courts are that defended petitions should be voided at all costs.
If a divorce petition has been served the other party has a right to contest it. That means they can challenge the grounds. They can firstly challenge the grounds on the basis that the petitioner has no jurisdiction to bring a petition for divorce in this country. This might then invoke a jurisdictional fight to whether the petition is, or is not valid in the first place. If it has been validly issued, then there can be a challenge on the basis for the divorce itself.
For example, if it has been pleaded that adultery has taken place, then the Respondent may deny that the adultery or the wording of the allegation of adultery is incorrect, or has never taken place. If a petition has been issued that the Respondent acted in such a way that the petitioner cannot reasonably be expected to live with them i.e. an unreasonable behaviour petition, then this can be contested on the basis that the behaviour complained of is denied. In either case, the Judge would have to hear full evidence from the parties and witnesses to deal with the facts and whether or not they are true and can be relied on.
If the petitioner has alleged that there has been desertion for 2 years immediately preceding the presentation of the petition, this can be defended on the basis that either there has been no desertion, or that there has not been a 2 year period.
If a 2 year separation petition with consent has been issued, this can be defended on the basis that either consent has not been given, or again the 2 year period has not been reached.
In the case of a 5 year separation petition, this can be defended on the basis that the 5 year period has not been uninterrupted or that the divorce would cause grave financial or other hardship. In the case of either adultery or unreasonable behaviour, this kind of petition can always be defended on the basis that it has been more than 6 months that the parties have lived together since the behaviour or adultery relied upon.
Essentially, there are 2 main defences to any divorce petition, namely that the facts put forward in the petition are not true or even if the facts are true, the view of the Respondent is that the marriage has not irretrievably broken down and is capable of sustaining.
If you wish to contest a divorce you must within 8 days of receiving the Acknowledgment of Service document that is filed with the Petition and served on you, state whether you intend to defend or not. You then have a further 21 days in which to file your defence which is known as an Answer. In the case of both an adultery and unreasonable behaviour petition, a draft of the petition should have been served beforehand under what is known as The Law Society Protocol, to give you an opportunity to raise issues of satisfaction or that the facts being put forward are not true or an exaggeration. If of course the other side has failed to follow The Law Society Protocol, this will give you all the more reason for your defence and put the other side at risk of costs.
If you have been served with a Petition and you simply do not accept the facts, it is open for you to try and get the other side to either amend their petition if they have not already issued it, or make the amendments before issuing the same in the event they have served a draft. If they can be persuaded, then there will be no need for you to put in a full answer or defence.
In an Answer if you do wish to proceed, you will either have to clearly state why you believe that the marriage has not irretrievably broken down. In most cases this will be by demonstrating that you are still undertaking sexual intercourse with them, living your normal married life and that they are still holding you out as their partner and nothing appears to have changed. This in itself can be clear evidence that the marriage has not irretrievably broken down.
If you wish to state that the marriage has broken down but the facts being relied on are not true, then you must set this out in your Answer and consider whether you wish to cross petition or file your own petition. If your defence to the petition is that there is no jurisdiction of the Court, a typical answer would state
“Respondent denies that this Honourable Court has jurisdiction to adjudicate in this matter and more specifically denies that the Petitioner or the Respondent are domiciled or resident in England and Wales.”
For example, you can say, prior to the parties separation, both parties were habitually resident in (put in an alternative country), the Respondent continues to reside at the former matrimonial home (put foreign jurisdiction or you can state that both parties are domiciled in a foreign country. By way of alternative you can state, both parties are resident in a foreign jurisdiction as a result of either of your employment abroad. Further, it could be stated that the petitioning party has only lived in the jurisdiction for less than 6 months. In all two you can start that they have their domicile here either by choice or of origin.
In relation to unreasonable behaviour petitions, there was previously a test set out in a case known as Livington Stallard -v- Livington Stallard. In this, a Judge Dunn J stated
“Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties.”
This is because for unreasonable behaviour it is a subjective one. This test, however, has now been overridden by the case of Owens -v- Owens in which Mrs Owens was desperately seeking divorce from what she described as her controlling husband.
The Supreme Court refused to give her a divorce on a defence being filed by the husband that his behaviour appeared to be similar to most husbands across the country. Because an answer can simply deny the allegations, if an answer states that the Respondent denies that the allegation is true or that they ever took place, or that they have ever behaved in the manner alleged in the petition or at all. Sometimes in an Answer, a Respondent can accept that they might have acted in a certain way, but denies the allegations as set out, or that they have had the impact that has been alleged. In most cases these kind of answers are those that are based upon the fact that the marriage has not irretrievably broken down.
However, it is possible to state that the marriage has broken down, that the facts relied on are not true and that you wish the Court to consider that the Petitioner was in fact to blame for the breakdown of the marriage as a result of their adultery, behaviour etc. Cross petitions are more common than simply denying that the marriage has irretrievably broken down, but it is often the case that both parties may test each other’s petition and it will end up with the Court upon a Directions hearing indicating to the parties that they ought to both accept each other’s petitions without admission of the allegations.
This would then result in cross decrees i.e. each taking a divorce against the other. It should be noted that if there is no viable reason to defend your spouse’s petition, that by doing so you are either tactically doing this to delay the proceedings and/or will by your actions necessarily add to costs, then the Court can in such circumstances, award costs against you.
If, of course, you are genuinely of the view that the allegations contained in the petition relating say, to unreasonable behaviour will have an impact on either your career, the outcome of the financial proceedings, or your children, then of course it is open for you to consider a full defence.
If at a Directions hearing which is the next step after an Answer has been filed, you are not able to agree the basis of the petition moving forward, then the matter could be listed for a hearing at which evidence will be called on both sides.
If you wish to fully defend an unreasonable behaviour petition, it may be necessary for you to call witnesses to confirm that allegations made where they relate to specific events that did not occur, or certainly did not occur in the way alleged. In the absence of calling independent testimony, it will be a choice between what you as the Petitioner are stating, or you as the Respondent are alleging. Judges are not able to form decisions relating to facts and it will be very difficult to appeal against a fact finding decision of a Judge on a contested petition.
It is rare that allegations of behaviour will impact on the financial side of matters, but the kind of allegations that might do so are that for example,
- That the Respondent was entirely secretive about his finances and believed to have offshore accounts or items that will not necessarily be disclosed financially in these proceedings.
- Or, the Respondent repeatedly behaved inappropriately to the children of the family in a manner that represented a threat to their health or wellbeing.
- Or the Respondent indicated to the Petitioner that he was going to hide his assets in the proceedings and would lie in his financial disclosure.
Allegations in those set out above will impact on the financial or children side of matters and therefore are more likely to be defended. However, it is always open to the parties to enter into negotiations whereby such allegations will be struck from the petition and the petition amended accordingly. It is not always the case that you have to leap into a defence of a petition if there are alternative ways of dealing with the matter to avoid a contested hearing.
It should also be noted that until there has been a Decree Nisi in divorce proceedings which will be inevitably delayed by a defended hearing, there cannot be any settlement in relation to the finances proved by the Court. It is therefore in the interests of both parties to try to avoid contested petitions if at all possible.