If divorce proceedings are started against you in England then you can contest the divorce. However, our Manchester divorce solicitors say that there are two points to consider when deciding whether to contest a divorce. First, even though you may want to contest the divorce, it isn’t always the best option. Second, the government is bringing in divorce reforms and that means in autumn 2021 the grounds for divorce proceedings will change and you will no longer be able to contest divorce proceedings. In this blog we look at how you can currently contest divorce proceedings and the planned change in divorce law.
Contesting Divorce Proceedings
If you receive a divorce petition in the post your immediate reaction may be to tell your husband or wife that you will be contesting the divorce proceedings. That is an understandable reaction if you are upset or angry about the separation or if you are hurt by the contents of the divorce petition. However, if you want to contest divorce proceedings it is best to take urgent legal advice from a specialist divorce solicitor because:
- Court rules impose a time limit within which you have to complete a form saying whether you are going to contest the divorce proceedings or not
- Instead of contesting the divorce you may find that it is a better option to get your husband or wife to amend the contents of their divorce petition
- If you are worried that the allegations in the divorce petition will affect your child arrangements order application or your financial settlement proceedings then you can agree that whilst you won’t defend the divorce proceedings you don’t accept the truth of the allegations contained in the divorce petition and that you will defend the allegations if they are raised in either the children or financial court proceedings
- The divorce petition may include a claim that you pay your husband or wife’s costs in connection with the divorce. This cost claim doesn’t cover any legal advice received by your husband or wife in relation to financial or children law aspects of your separation. If you negotiate you can either agree to each pay your own divorce proceedings costs or to pay a fixed contribution or an agreed amount in divorce costs.
If your divorce solicitor doesn’t recommend that you contest the divorce proceedings it isn’t because they think that the allegations in the divorce petition are true or that you won’t win but because they will be concerned that:
- The money spent in legal fees in contesting the divorce proceedings might be better spent on other legal expenses (such as the priority of getting the child arrangements order you want or the best financial settlement for you) or in paying for a holiday or other item for you
- Even if you successfully contest the divorce proceedings your husband or wife could issue new divorce proceedings in autumn 2021 and you won’t be able to contest those divorce proceedings. All you may have achieved is a delay in the divorce or a divorce on different grounds. This may be worth the legal costs of contested divorce proceedings to you but specialist Manchester divorce solicitors will want to flag up the issues and your alternative options and advise on if delay is in your best financial interests.
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The current divorce law
At present, if a husband or wife wants to get divorced the petitioner applying for the divorce has to show that the marriage has irretrievably broken down because of one of five facts:
- Adultery or
- Unreasonable behaviour or
- Two years separation with the consent of a husband or wife or
- Five years separation or
If you are being accused of adultery or unreasonable behaviour it is natural to want to contest the divorce proceedings. You can do so either because:
- You agree that the marriage has broken down irretrievably but you don’t accept the adultery or unreasonable behaviour allegations or
- You don’t accept that your marriage has irretrievably broken down.
When deciding whether or not to contest divorce proceedings it helps to know that if adultery is alleged in a divorce petition the adultery doesn’t have to be the cause of the marriage breakdown and it could have occurred many years after the separation took place.
What is the contested divorce process?
The process of getting divorced is similar whether it is an agreed divorce or a contested divorce. If your divorce is agreed then you won’t need to attend a court hearing in connection with your divorce and you will only have to go to court if you need a child arrangements order or a financial court order. If you can agree the child care arrangements and the financial settlement you probably won’t need to go to court at all as the court can be asked to approve an agreed financial consent order without the need for a court hearing.
The main differences between agreed and contested divorces are:
- In a contested divorce you will need to attend court and at the final hearing of the divorce proceedings you will need to give evidence
- In a contested divorce the divorce case will take a lot longer to determine. An agreed divorce can be achieved in about four to five months. A contested divorce will take a lot longer because of the need to obtain court hearings and limited court hearing availability
- A contested divorce will cost a lot more in legal fees and if you lose the case you may be ordered to pay your husband or wife’s divorce costs. Those costs night be the same amount or more than your own divorce costs.
The contested divorce process involves:
- The husband or wife who starts the divorce proceedings (the petitioner) sending a divorce petition and other documents to court
- The divorce court issuing the divorce proceedings and sending a copy of the divorce petition to you (the respondent)
- You filling in an acknowledgement form stating that you want to contest the divorce proceedings. There is a time limit to complete this form
- You filing a document (called an answer) saying why you oppose a divorce. There is a time limit to file the answer
- The petitioner can then chose to submit a document called a response to your answer
- The divorce court lists the divorce proceedings for a directions hearing to decide what orders are needed so that the contested divorce proceedings can be listed for a final hearing
- At the final hearing of the contested divorce, the judge decides if the petitioner is entitled to a divorce. If so, the decree nisi of divorce is pronounced. The decree nisi does not finalise the divorce proceedings as you have to wait for the decree absolute of divorce for the divorce to be made final
- Just over six weeks from the date of the decree nisi the petitioner can apply for decree absolute of divorce to end the marriage.
Remember that because of the change in divorce law all you are doing by contesting the divorce proceedings is delaying the divorce as eventually the petitioner will be able to secure a divorce under the new divorce law. In addition a divorce lawyer may recommend that it is in your best financial interests to go ahead with a divorce as quickly as you can because it isn’t until the decree nisi of divorce that the court can make a financial court order, either by agreement or after a contested court hearing. In some family scenarios the timing of the financial court order can be crucial and affect the size of your financial settlement.
What is no fault divorce?
The government has brought in new divorce law for no fault or no blame divorce proceedings. Divorce solicitors say that this has led to an increase in enquiries about contesting divorce proceedings now as people think that they might be better off forcing their husband or wife to wait until about autumn 2021 when they can start no fault divorce proceedings. Often that isn’t the case.
In summary the no fault divorce proceedings mean that:
- A husband or wife can decide to start the divorce proceedings jointly or, if they prefer, one of them can commence the divorce proceedings
- In a no fault divorce you can’t contest the divorce proceedings
- Instead of having to prove adultery, unreasonable behaviour or separation to get your divorce all a petitioner needs to show is that the marriage has irretrievably broken down by providing a statement of irretrievable breakdown
- A no fault divorce will take a minimum time of six months from the start of the divorce petition to the decree absolute of divorce. This six month period isn’t because of court delays but to allow time for reflection before the decree absolute of divorce is pronounced.
Manchester divorce solicitors say that most couples, under the current divorce law, are able to avoid contested divorce proceedings after taking specialist legal advice on their options and the implications of contesting the divorce, leaving the couple to focus on resolving child custody and contact and their financial settlement and financial court order.
Manchester and Cheshire Divorce Solicitors
Manchester and Cheshire based Evolve Family Law solicitors specialise in divorce proceedings, children law and financial settlements. If you need advice about contested divorce proceedings or on any other aspect of family law call us or complete our online enquiry form.
Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open with social distances measures in place for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.