After the news of the Muslim scholar who divorced his wife without her knowledge and Formula 1’s Bernie Ecclestone seemingly in denial about the court hearing for his decree nisi, how likely is it that your spouse can divorce you without you knowing?
A divorce starts with a petition showing why the marriage has irretrievably broken down. There are five facts on which a divorce can be based:-
1. Adultery
2. Unreasonable behaviour
3. Desertion followed by a two year separation
4. Two year separation where both parties agree to divorce
5. Five year separation if one party is reluctant to divorce
Most divorces are based on adultery, unreasonable behaviour or two year separation where both parties agree. The divorce petition only has to outline sufficient information to satisfy the judge that you are entitled to a divorce. It is no longer necessary to name the other party if the cause of the marriage breakdown is adultery. If the cause is unreasonable behaviour, the divorce petition will often focus on four or more examples of unreasonable behaviour rather than listing every instance. The person making the petition must also indicate where there will be an application for a financial order (ancillary relief) and, if there are any children, a statement of arrangements for children must also be completed and filed at the court. The party who starts the divorce proceedings and therefore files the petition is called the Petitioner.
Once filed with the court, a copy of the petition is sent to the other party, called the Respondent. When the Respondent receives the petition, they have up to 21 days to return the acknowledgement of service to the court, stating whether they agree to the divorce or intend to defend it. They also can object to any claim for costs and, if applicable, agree with arrangements for any children. If they do not file the acknowledgement, a court bailiff or process server will serve the divorce petition as it is essential to be able to prove to the court that the Respondent has received the petition. It is extremely unlikely that a Respondent would not receive the divorce petition.
If a Respondent wishes to contest the divorce, they have up to 14 days after filing the acknowledgement to file an answer or cross-petition if they disagree with any of the statements in the divorce petition. If the divorce is based on two years’ separation the Respondent will need to agree to this for the divorce to go ahead. A divorce petition based on five years’ separation can be contested by arguing that financial matters have to be settled or the Respondent will suffer financial disadvantage if the divorce is granted and the court will decide whether this is the case before finalising the divorce. Fewer than 1% of divorces are defended. Defending a divorce is costly and can become a drawn-out process.
If you have particular beliefs that prevent you, in your own conscience, from accepting a divorce, consider a judicial separation. The process is similar to that of a divorce but you will still be married. This also means that you and your spouse will be prevented from marrying anyone else. If you accept that divorce is inevitable but disagree with the reasons, e.g. you feel the unreasonable behaviour is exaggerated, it is possible to negotiate with your spouse to amend the petition. However, this would delay proceedings and some courts may not accept the amended reasons.
If you have any queries regarding divorce, please call James Haworth on 0116 212 1080 now or complete one of the on-line forms.
