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Contested divorce explained

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The quickest way to get through a divorce and keep costs down is for both sides to agree as much as possible on the way forward and be practical about the details of splitting assets and arrangements for children. This assumes though that both parties actually agree that a divorce is the right way forward and the reasons for this are valid.

If this is the case the process of divorce is fairly straight-forward, as explained on our How to get a UK divorce page. If, however the person you are trying to divorce, known as the respondent, doesn’t want to divorce, or doesn’t agree with your reasons for divorce the process can become prolonged and may result in a contested case in court.

Why contest a divorce petition?
A contested divorce can imply several things, but the term is used when the person on the receiving end of the divorce objects to it in some way. A person in receipt of divorce papers from their spouse has a right to their say on the case. They have the right to say “I don’t feel the marriage is over”, or “the reasons aren’t true” or “it is the other person’s fault”.

Initially a large percentage of people in receipt of divorce papers might feel disgruntled and want to contest the move. This is because they don’t want to be seen as the one to blame. The reality is that blame is rarely important in the grand scheme of things. There is no stigma attached to being the respondent in a divorce any more, and most of the time the reasons used in a divorce are simply a means to an end. Apart from in extremely serious cases, the reasons behind the breakdown of the marriage have no impact on any financial settlement that is agreed.

Divorce normally doesn’t result in court hearings
The obvious downside with the contested divorce is that, unless a compromise is found, it will result in expensive and time consuming court hearings. The way this works is that the standard divorce process is halted, and extra paperwork needs to be filed by the respondent setting out why they want to contest the divorce. The petitioner then has the opportunity to respond formally and an initial hearing date is set. There are usually at least three hearings before a final decision is made about how the case should proceed. Contrast this with an uncontested divorce which involves no court hearings at all and can often be completed within 4 – 6 months.

Minimising the risk of your spouse contesting the divorce
There are things you can do to minimise the chances of your spouse contesting the divorce. Talking about it in advance helps. Try and decide who will start the process and give any reasons in a sensitive manner. You do not need to have contentious or highly personal reasons to divorce if you use unreasonable behaviour as the grounds. Things like not spending enough time with you, not socialising with you or not making you feel loved and appreciated are often detailed enough reasons.

It is good practice to warn the other party that you are applying for a divorce and to discuss the reasons. The respondent is extremely unlikely to contest something they have helped to word. They’re also much less likely to object if you remove the shock of them receiving papers from the courts out of the blue.

I rarely encourage anyone to contest a divorce unless they have a compelling unusual reason for wanting to (this may be for religious reasons, for instance, or if one party is going to be left very much worse off by the change). It is expensive with very little benefit often, for either party. Each person will have their own separate views on why the relationship has broken down. If you both want out of the marriage, defending a divorce seems pointless as the reasons used don’t appear on the decree absolute.

Contested divorce is not common. I dealt with just two last year – which is probably about twice as many as normal. In the majority of cases, even when couples don’t like each other much very more common sense and practicality prevail and they choose not to contest.

Davina Warrington
Family solicitor, Staffordshire

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