Being told by your spouse that they consider the marriage to be over or receiving a divorce petition through the post can be a very distressing and unnerving time. This is especially likely to be the case if the divorce is not your choice and you do not want it to go ahead.
This article will address the headline points for you to think about if you find yourself in this situation.
Should I defend the divorce? Divorce where one party refuses
The first point to consider if the divorce is not your choice is whether it is worth your while trying to prevent it from going ahead. This is known as defending the divorce. A respondent to a divorce petition has the ability to defend the divorce in order to try and stop it going ahead.
To do this, there are certain procedural steps that you will need to take and it will always be advisable to take swift legal advice if you find yourself in this situation. Within 8 days of receiving the petition you will have to file with the Court the Acknowledgement of Service form, indicating your intention to defend the petition. You then have a further 21 days to file an ‘Answer’ which is the formal document setting out your reasons for defending the divorce. The court fee for filing an Answer is £245.
Generally, we advise our clients not to defend a petition, after all it is unlikely that you will be able to prevent the divorce going ahead if your spouse is adamant that the marriage is over. Defending a petition has cost consequences for both parties as it complicates what is otherwise a relatively straightforward process. In reality it simply delays the inevitable. Aside from your own costs, you could also be responsible for your spouse’s costs, particularly if your reasons for wanting to defend the petition are unmerited.
It is also worth bearing in mind that the petition itself is unlikely to have any future bearing on the other aspects of your case i.e. dividing the assets or the arrangements for the children. It is therefore only likely to be worthwhile defending the divorce in very limited circumstances, for example if the contents of the petition are so extreme as to have a bearing on other matters.
Divorce where both parties agree
If both parties agree, the divorce process is usually straightforward.
If the party who receives the divorce papers agrees to the divorce, he or she will have to return to the court a form confirming this (the Acknowledgement of Service form). Once this has been received, the person who applied for the divorce (the Petitioner) can apply to the court for Decree Nisi. This is the first decree of divorce. It does not bring the marriage to an end.
After six weeks, the Petitioner can apply for Decree Absolute or final decree of divorce. It is the Decree Absolute which ends the marriage. If the Petitioner fails to apply for the Decree Absolute, the Respondent may apply after a further three months.
Next Steps
If you have received a petition and would like specialist advise then please do not hesitate to contact Rayden Solicitors. All of our solicitors are members of Resolution and will be happy to discuss your case with you.
