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Solicitor Arundel

My partner’s filed for divorce – should I challenge it?

By Stephanie Dew – Solicitor and Head of Family Law at MG Solicitors

I am often contacted by distraught clients who have been served with a “surprise” divorce petition.  The sudden beginning of the formality of the divorce process can come as another shock for them during the separation process.  The contents of the divorce petition can cause further pain and trauma during what is already a very difficult time.  It is not uncommon for the recipient of the petition to disagree that the marriage has broken down irretrievably, or to dispute what their ex-partner may have said about “unreasonable behaviour” or “adultery” to support the grounds of the divorce.   What is said within a divorce petition can be incredibly hurtful and trigger further (unnecessary) animosity between the parties.

If neither you nor your partner have filed for divorce yet, please get early legal advice, a good lawyer will be able to give you sensible advice about how to liaise with your ex-partner about the preparation and wording of the divorce petition to avoid these problems.

“I’ve been served with a divorce petition and I don’t agree with what it says – what can I do?”

Defend the Petition or Issue a cross petition

Your immediate reaction may be to challenge the petition, to fight it or to file your own cross-petition.   It is likely that you will want to ensure that the Court knows that it was your ex-partner rather than you that was in the wrong and to feel that you have “won”.  However, unless you really want to remain married to your partner and your objective is not to get divorced, defending a petition or issuing a cross-petition is not normally a good idea.

Defending a divorce and cross-petitioning is a lengthy and expensive process and it will involve a number of hearings.  Ultimately the Court will look at the evidence in the petition and your response to it and the Judge will have to decide if they are satisfied that the marriage is at an end. Usually if one party believes the marriage has broken down, then it is likely the Judge will grant the divorce, however there was an unusual case in 2018 when the Supreme Court upheld a decision to reject a wife’s unreasonable behaviour petition on the basis that the allegations were insufficient.  Here is a link if you would like to read more about that case.

https://www.familylaw.co.uk/news_and_comment/owens-v-owens-supreme-court-dismisses-wife-s-appeal

My view is that in most cases the parties would be much better to focus their time, energy and legal fees on reaching an agreement in relation to the family finances and child arrangements and you would be better to consider one of the other options below.

Ask your ex-partner to amend the petition

If you are able to agree a wording for the contents of the petition, you or your solicitor could contact your ex-partner or their solicitor to ask for the petition to be amended so that it is drafted on more amenable terms.   You can then agree what should and should not be included in order that the divorce can move forward.

State that you do not accept the allegations

If you do not oppose the divorce itself, rather it is the contents of the petition you object to, you can let the divorce proceed whilst stating that you do not accept the allegations.  When you or your solicitor complete the acknowledgement of service form you can state that you do not intend to defend the proceedings but that you do not accept the allegations.  This highlights to the Judge that you are not admitting to this behaviour, but it enables the divorce to proceed.

What usually happens?

It is rare for a Respondent to defend a divorce or cross petition, partly due to the expense involved.  It is also important to note that it is very rare for any behaviour or adultery allegations to affect any financial settlement.  The Court when considering the family finances will not take into account any allegations unless it is conduct which “would in the opinion of the Court be inequitable to disregard”.

The rare occasions upon which allegations are taken into account are:

  1. Financial misconduct: e.g.  a party has gambled away the family money
  2. Litigation misconduct: e.g.  example if a party has been highly obstructive or dishonest in Court proceedings.
  3. Other misconduct: this which would need to be extreme to be taken into account and can include murder or violent assault to the extent of disabling the spouse.

The reality is that the divorce petition is not a public document, it should not be seen by another other than the parties, their legal representatives and the Court.  Whilst it can be extremely hurtful to receive a petition you disagree with, in most cases it is better to focus your energy and resources in moving forward and focussing on achieving a good financial settlement and appropriate arrangements for the children.

Should you be affected by the issues in this article, we offer a free initial consultation for new enquiries to assess whether we are able to assist you and to discuss anticipated fees for our services.  Call us today on 0207 936 6329 or complete our Contact Form and we will call you back.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

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