Divorce law in England and Wales significantly changed in April 2022; we now have what is known as a ‘no-fault’ divorce system. In summary, this means the court no longer seeks information as to the circumstances of why the marriage broke down.
Previously to this and since 1973, one needed to possibly blame the other relying upon their unreasonable behaviour or waiting for a separation period of two or five years. These are now redundant.
The potential for conflict has very much been reduced. However, does this mean one can no longer have a contested divorce? Let’s explore.
What Does Contested Divorce Mean?
In order to commence divorce proceedings in England and Wales, you do need to satisfy jurisdictional grounds evidencing why an English / Welsh court, and not a foreign court, should consider the divorce. A divorce can now only be contested if one seeks to challenge it on jurisdictional grounds. To satisfy the jurisdictional test, the applicant must satisfy one of the following:
- Both spouses are habitually resident in England and Wales.
- Both spouses were last habitually resident in England and Wales and one of them continues to reside there.
- The respondent is habitually resident in England and Wales.
- It is a joint application and either the applicant or the respondent is habitually resident in England and Wales.
- The applicant is habitually resident in England and Wales and has resided there for at least one year immediately preceding the application.
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately preceding the application.
- Both spouses are domiciled in England and Wales.
- The applicant or the respondent is domiciled in England and Wales.
You will note that one must satisfy either habitual residence or domicile in all circumstances and on occasion a recent period of residence. What constitutes habitual residence and domicile can be quite a complex legal concept in itself; please see my previous blog on the importance of jurisdiction in divorce which provides some further information in this respect.
Should your spouse lodge a divorce application relying upon one of the above jurisdictional grounds which you know to be false, it can be contested. Equally, if a foreign court is already considering the divorce, it is possible to contest the divorce that has been issued in England and Wales. A divorce can also be contested if the marriage is not valid or has already been legally ended. Contested divorces generally involve an international element where the spouses have clear links to other countries.
Contested divorce and uncontested divorce, what is the difference?
An uncontested divorce means that both parties agree to a divorce and cooperate with the various stages in the divorce process from its issue to Final Order. In circumstances where it is a sole application, the respondent will need to complete the Acknowledgement of Service consenting to the divorce. An uncontested divorce generally takes six to seven months from start to finish.
A contested divorce is when the respondent challenges the divorce based upon one of the defences highlighted above. The respondent would do so by completing the Answer to the Divorce Application opposing the divorce and setting out why. There will likely be a directions hearing listed for a Judge to consider and, if necessary, a trial listed for a determination to be made. The respondent is at risk of a costs order should a divorce be defended without merit. In terms of timings, the spouses are at the mercy of court’s listing; it is not uncommon for such proceedings to take over 12 months.
Can a contested divorce become an uncontested divorce?
Fully contested divorce proceedings are rare – even more so since the change in the law in April 2022. Should the respondent change their position or should a subsequent agreement be reached between the spouses, the respondent can withdraw their opposition to the divorce application and consent to the divorce moving forward.
Get legal help for a contested divorce
We, at Rayden Solicitors, are specialist international family lawyers.
Should you believe your spouse has or is considering a divorce application where the above grounds for contesting the application apply, early specialist advice is essential.
Similarly, if you are considering lodging a divorce application and hold concerns that your spouse may contest the application, legal advice should be obtained.
In circumstances where spouses can potentially issue in more than one country due to their habitual residence / domicile, it is important to first consider which country divorce proceedings should be commenced before lodging an application.
We are happy to assist when such circumstances arise.
For the vast majority of divorcing spouses, an uncontested divorce is the recommended option. However, there are circumstances where contesting the divorce is necessary and the correct course of action. Such divorces are very much fact specific and there may not be a one size fits all approach. Often, the spouses’ solicitors can discuss and reach a resolution directly without the necessity for possibly lengthy and protracted court proceedings.
