In my many years practicing family law, I have seen a multitude of reasons for filing for divorce raised by Petitioners. In many of those cases, I see the ground of unreasonable behaviour raised. To satisfy that ground for divorce, it must be proved that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Examples of this type of behaviour can range from ignoring each other to domestic abuse. Thankfully, with the introduction of the “No Fault Divorce” later this year, petitions for divorce citing behaviour of any sort will be a thing of the past.
It is not unusual to be presented with a Petition where the Petitioner has raised allegations, which a Respondent may believe not to be correct, or that have been exaggerated. The key question here is – do both parties want the divorce? If the answer is yes, then a petition generally should not be defended. It should not be a question of one party trying to trump the other with their allegations. Many clients I see are concerned about the stigma that may be attached to not defending a divorce. Often, a Respondent may be worried about the implications upon the matrimonial finances. However, it is extremely rare that the court, when looking at matrimonial finances, will take into consideration the conduct of one party only, unless the behaviour is so exceptional and gross in nature that it would be inequitable not to do so.
The second question relates to costs, whereby a party thinks that by not defending a petition, he or she may face a costs order. This does, however, have a certain element of truth to it. That being said, if a costs order is made, that party does have the right to be heard by the court on the issue of costs at the Decree Nisi hearing, when the court will take into account an individual’s financial income and their ability to meet any costs order. Also, it can be agreed with the other side not to pursue costs on the basis that the petition will not be defended.
From my experience, I would always suggest to a Respondent if they feel the behaviour alleged is untrue, that they make it abundantly clear on the acknowledgment of service form that he or she does not intend to defend the petition, but that he or she objects to the particulars. This makes the court aware the Respondent wants the divorce, but does not agree with the grounds set out by their ex partner.
Defending a case means the person responding must provide a full written response within 21 days setting out their reasons. A court fee will also be required to be paid. The court will then formally convene a hearing, which both parties must attend. At the hearing, the judge will decide whether the Divorce Petition can proceed and as such, the losing party is likely to have to pay the winning party’s costs. It is strongly advised therefore that petitions are only ever defended as a last resort. Thankfully, once the new provisions come into effect later this year, the option to defend a case will also be a thing of the past.
It is important for Respondents in divorce cases to consider any petition carefully and to obtain prompt legal advice if they are unsure how they should proceed.