In This Post
Contesting a divorce can be a bit of a bear trap if you don't know what you're doing. In this comprehensive guide I'll talk you through all the risk and pitfalls of a contested divorce, including:
- What is a contested divorce?
- Can my spouse really prevent me from getting a divorce?
- What's the difference between a contested and an uncontested divorce?
And much more.
Let's start...
What Is A Contested Divorce?
Contesting divorce means challenging the grounds of a divorce claim. Simply put, one party argues that the marriage should not end.
To do so, they must show that the marital relationship has not irretrievably broken down.
Contesting divorce is rare - 99% of all divorce proceedings go forward undefended (meaning both parties agree to get divorced), as the process of contesting a divorce can be long and somewhat daunting.
More commonly, couples agree to get divorced, but might have a dispute around any children or the family finances.
These issues can still be resolved by the courts without having to contest the divorce itself. Therefore, before embarking on the process of contesting a divorce, it's worth considering whether your divorce could proceed uncontested.
What Are The Differences Between Contested And Uncontested Divorces?
Some of the key differences between contested divorces and uncontested divorces are:
What Are The Grounds For Defending A Divorce?
In the UK, the person applying for a divorce must show that one of the following <bloglink>5 grounds of divorce<bloglink> is satisfied:
- Adultery
- Unreasonable Behaviour
- Two-year separation with the consent of both spouses
- A five-year separation
- Desertion
If the person opposing the divorce wishes to contest it, they must do so on one of two ground. They must show that that either:
- Any allegations of adultery or unreasonable behaviour are false or exaggerated, or;
- The marriage is still sustainable and can be rescued (ie. it has not “irretrievably broken down”)
In either case a court trial will be necessary, where it is almost inevitable that both spouses will need to give evidence and be cross-examined.
This is a key reason many people seek to avoid contesting a divorce, due to the cost and stress involved.
.png)
Is It Worth Contesting A Divorce In The UK?
It depends.
Most marriages go ahead uncontested after lawyers have drafted up a suitable divorce settlement that benefits both parties.
Contested divorces occur where one party either doesn't want to get divorced at all (which is rare), or where they dispute the allegations of unreasonable behaviour or adultery made by their spouse (a <bloglink>study<bloglink> conducted by the Nuffield Foundation found that this was the case in 90% of defended divorces).
In short, the opposing spouse doesn't want to be the blamed as being "at fault" for the divorce. Whether or not this is a sufficiently good reason to justify incurring the extra cost, time, and stress involved in defending a divorce is a matter for individual judgement.
But, if you are content to get a divorce, but simply disagree with the facts and allegations your spouse has made on their divorce petition; it is always worth trying to negotiate with them first (usually via your lawyers) to see if they are willing to amend the petition allegations as part of the <bloglink>settlement process.<bloglink> This can help you avoid the complex and stressful procedure of challenging the grounds of divorce in court, and allows both parties to walk away from the marriage feeling like they have reached an amicable settlement.
It's also worth remembering that, even if you do contest the divorce, there is no guarantee you'll succeed, meaning that the court may side with your spouse and find the allegations proven in any case. These are all important considerations to take into account before deciding whether or not it's worth contesting a divorce.
Contesting A Divorce- The Process
If a spouse does wish s to oppose the granting of a divorce, then the process is as follows:
The Hearing
The crux of a defended divorce will be the final hearing before a trial judge, where the opposing party will give evidence as to:
- Why they’re contesting the divorce
- Any evidence contradicting the facts stated in the divorce petition
- Why they say the marriage has not "irretrievably broken down" and how it can be rescued
- Calling any other witnesses that support their case
The applicant will also have to opportunity to give evidence stating why the divorce should be granted, and can call any witnesses of their own in support.
What If The Allegations In The Petition Are Accurate?
So far we've been assuming that the allegations contained in the divorce petition were false or inaccurate, but let's say they weren't - what should you do then?
Let's run through a few examples:
- If you have committed adultery, and it is stated as a reason for the divorce - you need to show the court that you and your partner sustained a marriage for 6 months or more following the act.
- Additionally, you could show that the allegation was exaggerated. For example if your partner alleges you slept with someone else, but you can prove that there was never any intercourse.
- If you have been accused of unreasonable behaviour - you can bring forward witnesses that corroborate the fact that your partner has been exaggerating the patterns.
Are There Any Other Grounds For Contesting A Divorce In The UK?
There is another less common situation where one party may be able to challenge a divorce, on the grounds that the UK courts do not have jurisdiction.
Sometimes when a couple has married abroad, one spouse will seek to get divorced in the UK. This often happens because the UK courts are seen as giving more favourable financial settlements to the divorcing spouse (often the wife) than they do in other countries.
But to get a divorce in the UK, the applicant must first show that the British courts have jurisdiction to hear the case.
Two terms to remember here are 'habitual residence' and 'domicile'.
Your habitual residence refers to the area where you primarily live throughout the year. To prove that you are a habitual resident of the United Kingdom, you must provide evidence that suggests that you live or intend to stay settled in the UK for a foreseeable amount of time (for example you have a home address here; you live and work in the UK; your children go to school here etc).
Domicile refers to the country where you have the closest ties (often the country you were born in). For example, you may currently live in the US, but still be domiciled in the UK. Domicile does not, however, always refer to nationality. The case against jurisdiction based on domicile can get complicated if your parents have moved around countries while you were young, or if you have strong connections to several countries.
You may decide to challenge the divorce application on the basis of jurisdiction or domicile where there is a question over either parties' connection with the UK.
The courts will generally not allow a divorce in the UK where they view the parties have only tenuous links to Britain, or where they feel the parties are conducting 'divorce tourism'.
How Will The New 'No Fault' Divorce Laws Affect Defended Divorces?
On the 6th of April 2022 the new <bloglink>"Divorce, Dissolution and Separation Act 2020"<bloglink> will become law.
This is a huge overhaul of divorce law in England and Wales.
It is intended to reflect changing societal attitudes by recognising that people can want to get divorced without it becoming a ‘blame game’.
Under the new law, you simply need to provide a statement saying the relationship has ‘irretrievably broken down’.
There will be no longer be a requirement to prove any of the grounds of divorce discussed above, making the process much simpler and quicker.
And, it will no longer be possible to contest a divorce in the UK. In short, if one party wants to get divorced, the other party will not be able to stop it (though contesting a divorce on the grounds of jurisdiction will still be possible).
You can learn more about the new no-fault divorce laws in my separate guide:
How Much Does A Contested Divorce Cost?
The court will charge a fee to the divorce applicant when submitting <bloglink>form D8<bloglink> (the divorce application form). The current fee is £593. In addition, most people will chose to employ a lawyer to represent them during a contested divorce. You can find out more about how much lawyers charge for a divorce <bloglink>here,<bloglink> and about divorce funding services <bloglink>here.<bloglink>
Can You Communicate With Your Partner During A Contested Divorce?
There is nothing to stop you contacting your spouse during a defended divorce. However, many legal experts strongly advise against it!
Why? Because any volatile confrontations between the parties could be held against them, as any communication made between you and your spouse after receiving the divorce petition could still be used in court proceedings.
Therefore, all communication are best made through your lawyer where possible.
How Long Does A Contested Divorce Take?
A contested divorce will almost always take longer that an uncontested divorce, as it will certainly need to got to a court trial. The whole process can easily take a year or more. However, under the new no-fault divorce laws arriving in April 2022, it will no longer be possible to contest a divorce and the whole process, on average, will be quicker. You can learn more about how long a no-fault divorce takes here.
Neil Johnstone is a barrister and the founder of FundingMyClaim.com. Neil is a barrister with an interest in all forms of civil and family law, and has appeared at all Court levels, up to and including the Court of Appeal.
Neil started this site in response to a common problem he noticed: Clients were unable to pursue deserving cases due to a lack of up-front funds. Neil knew that better access to No-Win-No-Fee representation and legal funding could help bridge the gap, and so founded FundingMyClaim.com; a unique comparison site connecting clients, law firms, and specialist funders.
Tell Me What You Think!
I hope this guide to contested divorces was helpful. What are your thoughts?
Start a conversation by leaving a comment below...