What can I do if I am unhappy with the divorce petition that my spouse wants to issue?

The Divorce, Dissolution and Separation Bill 2020 will come into force on 6th April 2022, allowing couples to petition for divorce on a non-fault basis.

Until then, parties seeking to start divorce proceedings must demonstrate that their marriage has broken down irretrievably by relying on one of five facts, which include:

• Adultery
• Unreasonable behaviour
• Desertion of two years
• Separation of two years by consent
• Separation of five years, with or without consent

Petitions based on adultery cannot proceed without the admission of the respondent to the divorce.  Also, petitions that are based on two years of separation will require the respondent’s consent to the divorce.  However, it is where the divorce petition is based on unreasonable behaviour, that most disagreements can arise.  In such petitions, the petitioner will need to set out examples of the respondent’s alleged unreasonable behaviour as evidence that they cannot reasonably be expected to live with them anymore.

Solicitors that are representing the petitioner in the divorce must follow the Family Law Protocol by sending a draft of the petition to the respondent before filing it at court.  Usually, the respondent will be given some time to seek legal advice on the contents of the petition, and to respond, if necessary, with any comments.  If there are objections to certain allegations of unreasonable behaviour, the respondent, or solicitors acting for them, can correspond with the solicitors acting for the petitioner and request that they are removed and / or suggest alternative allegations or wordings that are considered more appropriate.  The petitioner is not obliged to accept the proposed amendments to the divorce petition, but they may wish to compromise in order to avoid contested divorce proceedings, which will add delay and can increase legal costs to both parties.

Alternatively, when completing their Acknowledgement of Service, which is a form that the respondent receives from court once the divorce petition has been issued, they can state that while they will not defend the divorce, they do not accept that the allegations made against them are true, and reserve the right to defend and / or deny them if raised in subsequent proceedings.

Finally, in the case of the respondent objecting to the divorce itself, as opposed to the content of the divorce petition, they shall be required to file their Acknowledgement of Service within 7 business days of receipt and file their defence, known officially as an Answer, 21 business days thereafter.  Defending a divorce will result in longer proceedings where parties will be required to attend at least one hearing.  A Judge shall hear evidence from both parties and determine whether to grant the divorce or not.  It is important to bear in mind that if the defending party is unsuccessful, then not only will they have incurred significant legal costs themselves, if represented by a solicitor, but it is also likely that they shall be ordered to pay their spouse’s legal costs as well.

At Tisshaws, we are experienced family lawyers that can advise on the content and possible implications of a draft divorce petition.  If it is considered necessary to respond to that draft petition, with a view to amending it or opposing it, we have the skill to provide the correct advice and support to our clients.   We offer an initial consultation of up to one hour for £50.00 (Incl. VAT), where you can receive further advice about divorce proceedings.  To book an initial consultation with us, please contact 01444 472700, email us at info@tisshawssolicitors.co.uk or complete the form below.