Although the pain of a relationship breakdown might spur an angry spouse into fighting a divorce, you should think long and hard before doing so: contesting a divorce petition can be time-consuming and very expensive. Many divorcees are worse off after their marriage breaks down, even if the divorce is agreed; those who choose to contest it may find a large chunk of their assets swallowed up by legal fees.
If, after taking legal advice, you do decide to contest the divorce petition, you need to fill in the part of the acknowledgment of service form which says you’re defending the divorce. You then have eight days to return it to the court. The court will send copies to your spouse.
After you return the acknowledgment of service form, you have up to 21 days to say why you are defending the divorce. This is done by filling in court papers called an Answer. This is your opportunity to tell the court why you don’t think your marriage has irretrievably broken down.
A court hearing might be required for a judge to decide whether the marriage has broken down, although these hearings are rare, since most defended divorces are settled before the case comes to court. Remember: if the court rules against you, you may have to pay all the legal costs.
To obtain a divorce, your spouse will have to show:
- that you have behaved so unreasonably that the marriage cannot be salvaged;
- you deserted them for at least two years ago;
- you have lived apart for at least five years.
If you defend the divorce, your spouse may have to produce evidence, such as emails and photographs, to satisfy the court on the balance of probabilities (ie, whether it is more likely to have happened than not), that it is proven.
If you have been living apart for five years or more, your spouse does not need your agreement to divorce you. One defence to this petition, however, is to claim exceptional hardship. To succeed, you would have to show that you would lose considerable income were the divorce to be granted.
If you and your spouse can’t agree on your financial affairs, you can ask the court to decide for you. The court can make a financial order which will make arrangements for things like maintenance, lump sums, pension payments, property ownership and child support.
Rather than fighting an expensive divorce battle, you could opt instead for a separation agreement. Under this arrangement, you and your spouse stay married but are recognised in law as formally separated. This could be an option if you have religious reasons for not wanting to divorce or if you’ve been married for less than a year.
You can ask for a legal separation on the same grounds as you would file for a divorce (eg, adultery or unreasonable behaviour), but you don’t need to show that the marriage has broken down irretrievably.
A legal separation costs £340 and to obtain one you must fill in a judicial separation petition (Form D8) and send two copies to the court, together with a certified copy of your marriage certificate.