Defences to divorce

Contesting a divorce can be expensive and time-consuming. Most lawyers advise against it. Uncontested divorces run a lot more smoothly. While the drama of the courtroom may seem attractive during this period of marital turmoil, those who decide to contest their divorces may find a large chunk of their assets swallowed up by legal fees. This is why very few divorces are contested.

Emotions run high at a time like this, however, and some people may decide to fight a divorce.

If so, when the divorce petition arrives, the respondent (the one who is being divorced) must file an acknowledgement of service in response to the petition in 28 days, and request a direction for trial in order to organise a court hearing. The respondent should be aware that, if they lose, they may have to pay all the legal costs.

In order for the divorce to be granted, the petitioner (the spouse calling for the divorce) must show either adultery or behaviour such that it is unreasonable for the couple to continue living together. If the respondent disputes this, then the petitioner may have to produce evidence such as emails and photographs. The court must then decide on the balance of probabilities (whether it is more likely to have happened than not), whether it is proven. The petitioner can also claim desertion for a period of two years, but this is rarely used.

Otherwise, for a contested divorce to proceed, the petitioner must show the couple has been separated for five years.

One defence to a petition based on five years’ separation is to claim exceptional hardship. This can be used where the respondent can show they would lose considerable income were the divorce to be granted.

Where the couple can’t agree on their financial arrangements, an application can be made for ancillary relief (a court order for financial relief which can include maintenance, lump sums, and child support). If the couple is wealthy, they may be asked to complete a statement of means, which details their finances, six weeks before the hearing. The judge will direct how the case should proceed. Ultimately, the judge can make an order covering all the issues that have been raised, and decide who will pay the costs.

An alternative to all this is to opt for a separation agreement. Under this arrangement, the husband and wife remain married but are recognised in law as formally separated.

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