Defending a Petition
Divorce & Family Law Solicitors in Kent and London
Once a petition is issued it is sent by the court to the respondent, together with a form called an acknowledgement of service. The respondent must complete the form and return it to the court stating whether or not he/she intends to defend the proceedings. If the respondent intends to defend the proceedings he/she must file an answer within 21 days of the date by which the acknowledgement of service must be filed. The respondent may make his/her own application for a divorce on different grounds within the same 21 day period and if so the application will be treated as being made within the same proceedings as the original application.
If the proceedings are defended then a court hearing will be required to determine the issue.
Defended divorces are quite rare in practice for several reasons. Not only do they heighten tension between the parties, but they cause delay and are costly and distressing for the parties. The outcome inevitably results in the defending party failing. Judges tend to take the view that if one party believes that the marriage has irretrievably broken down, then it has. Having lost the case the defending party may then have to fund the petitioning party’s costs as well as their own.
Quite often, when a party receives a petition based on unreasonable behaviour or adultery, the facts relied upon are disputed by them because they are exaggerated or entirely untrue. The aggrieved party may be of the mistaken view that they have no alternative but to defend the petition, even when they accept that the marriage has broken down for other reasons.
The main point of worry for most is that an unreasonable behaviour or adultery petition could impact any proceedings concerning the children or finances. For financial proceedings, it is only the behaviour that is extreme and has some significant impact specifically on the parties’ financial position that is taken into account. Although in cases of unreasonable behaviour and adultery the respondent is likely to be ordered to pay the petitioner’s costs, those costs would be considerably less than the costs of filing an answer and defending the proceedings.
In such circumstances, the respondent can allow the divorce to proceed but can make it clear in the acknowledgement of service form that, although they do not intend to defend the proceedings they do not make any admissions about the truth of the allegations.
Nowadays most solicitors provide a draft copy of any behaviour particulars to the respondent before filing at the court. This helps reduce the acrimony between the parties and factual issues in dispute can often be resolved before the issue.