Defended Divorce

It is possible to defend a divorce petition but only just. You may wish to do so because you genuinely believe that the marriage has not broken down beyond repair and can be saved, or entering a defence may be a tactical move connected with financial issues or your children. If you do not accept that your marriage has irretrievably broken, the law is that you have the right to defend the divorce proceedings and file an answer. However, the reality in practice is that unless there are reasons why the marriage should not be dissolved – such as financial or religious issues -, the court generally assumes that if divorce proceedings have been issued, the marriage has in fact broken down. In reality if one party considers that the marriage has broken down, it is going to be dissolved by the court. It may take two to make a marriage but it only takes one to dissolve it.

Contesting a divorce petition.

After a divorce petition has been served by a petitioner, the respondent has the right to contest it. To contest the petition means to challenge the grounds for divorce. For example, in an adultery petition the respondent may deny the adultery, and on an unreasonable behavior petition, it can be denied that the behavior was such that the petitioner could not be expected to live with you. This would mean a judge would need to hear evidence to prove or disprove the facts relied upon.

The only ground for divorce is that the marriage has irretrievably broken down. It has been long established that the test of irretrievable breakdown is subjective. Therefore, if one spouse believes that the marriage has irretrievably broken down the subjective test means that it is near impossible to prove otherwise. If one believes that the marriage is over, then clearly there is no marriage left to save as it takes two to make a marriage.

Facts for defending a divorce petition

The irretrievable breakdown must be shown by establishing one of the five facts. There can therefore only be two main defenses to a divorce petition.

• That the facts relied upon in the petition are not true.
• That although the facts are true, the marriage has not irretrievably broken down.

In addition, there are defenses to the different grounds:

• That there has been more than the six months cohabitation since the behaviour or adultery ground relied upon (the kiss and make up provision);
• That a divorce would cause grave financial or other hardship following a five-year separation petition.

Entering a defence is known as answering a divorce petition. Time limits apply, and your answer must be filed within 14 days of service of the divorce petition. Filing an answer will at least slow the proceedings and allow the petitioner time to reflect upon the failed marriage and prospect of divorce. Once an answer has been filed, it becomes your spouse’s responsibility to prove to the court that the marriage has irretrievably broken down due to the reasons set out in their petition. However, if they are able to do so and the defence is unsuccessful, there is the possibility that you will be ordered to pay any legal costs which will have been incurred.

It is possible and an alternative to filing a defence to file a statement denying the allegations in the divorce petition, but nonetheless confirming that they do not intend to defend the divorce. Often, both spouses have equally valid reasons for divorce, but this is not a reason to defend one partner’s petition.

In order to defend a divorce you will need to set out your reasons for denying that the marriage has irretrievably broken down by reason of the matters alleged.  Evidence must be provided for the hearing which will be fixed on receipt of your answer. For example, in the case of a divorce petition issued on the grounds of adultery, the petitioner alleging adultery will need evidence to prove this. The court will then hear evidence from both parties before deciding whether the divorce should be defended or not.

The law requires proof that the marriage is irretrievably over through what are commonly known as the five facts – adultery, unreasonable behaviour, desertion, two years of separation with consent from both spouses or five years separation without consent. The defence is based upon the idea that one of these facts that the petitioner has said to be the cause for the marital breakdown does not exist. This would then establish that the legal basis for a divorce does not exist.

Disputing the jurisdiction of the court

There could be advantages in disputing the jurisdiction of the court.  This might be a possibility with an overseas marriage or where the parties are not permanently resident or domiciled in England and Wales. Other jurisdictions may well be more favourable in making financial orders than in the UK.

The EU Regulation states that the English courts will only be able to deal with your petition if, and only if, one of the following descriptions applies to your circumstances:

1. Both the petitioner and the respondent are habitually resident in England or Wales;
2. The respondent is habitually resident in England or Wales;
3. The petitioner and the respondent were last habitually resident in England or Wales and one of them continues to reside there;
4. The petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued;
5. The petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued;
6. The petitioner and the respondent are both domiciled in England or Wales or if (but only if) no court of an EU contracting state has jurisdiction;
7. The petitioner or the respondent is domiciled in England or Wales on the date when the petition is issued.

The jurisdiction to grant a divorce in England or Wales therefore depends upon whether at least one of the parties has sufficient connection with the country. The court will have jurisdiction if either you or your spouse are domiciled in England or Wales when the petition is filed, or either of you have been habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun.

Thus, anyone of whatever nationality and wherever they were married can obtain a divorce in England so long as they have been habitually resident here for a qualifying period of one year immediately before issuing the petition. Even those spouses who have moved away and are not resident in England and Wales may be able to divorce in England if they have their domicile in this country. This is much wider than residence and constitutes a fixed intention to live as their permanent home, or have a substantial connection with.

An answer denying the court’s jurisdiction to hear the petition might read as follows:

(1) The respondent denies that this Honorable Court has jurisdiction to adjudicate in this suit and more specifically denies that either the petitioner or the respondent are domiciled in England and Wales.  Prior to the parties’ separation on … they were both habitually resident in Honolulu and the respondent continues to reside at the former matrimonial home at … in Honolulu.

(2) The petitioner and respondent are both domiciled in the USA and moved to Honolulu as a result of the respondent’s employment with an American company.

(3)The petitioner has lived in England for six weeks only.

Disputing adultery petitions

Adultery is defined as voluntary sexual intercourse between a married person and somebody other than his or her spouse.

It is not sufficient under this ground for the petitioner to simply establish that adultery has taken place. It must also be shown that the petitioner finds the respondent’s adultery intolerable. This is however a subjective test and if a petitioner says that they find the adultery intolerable it is difficult to prove otherwise.

It will not be possible, however, to establish the adultery as being intolerable if the petitioner and respondent have lived together for more than six months after the last alleged act of adultery. This would allow a defence to the petition. The kiss and make up provisions which also apply to the unreasonable behaviour ground will apply in a similar way.

Disputing the unreasonable behaviour ground

The test for unreasonable behaviour that is generally accepted is that formulated by Dunn J in Livingstone-Stallard v Livingstone-Stallard:

‘Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?’

The test is therefore purely subjective.

This behaviour complained of can cover a multitude of ‘sins’ ranging from violence to nagging, from causing embarrassment to complete neglect, from positive, intentional behaviour to involuntary passivity. But what, at any rate in theory, it cannot cover is incompatibility, for example, that the spouses no longer have anything in common and can no longer communicate or one of them is bored with the marriage.

When the divorce petition cites unreasonable behaviour, it is possible to simply deny the behaviour alleged.

Example answer to an unreasonable behaviour petition:

The respondent in answer to the petition filed in this suit says as follows:

(1) That s/he denies that the said marriage has irretrievably broken down.

(2) That s/he denies each and every allegation in paragraphs … of the petition and more particularly denies that s/he has behaved in the manner alleged in the petition or at all.

It is better however to be more specific with the answers given. A better defence to an unreasonable behaviour petition is to admit to the behaviour complained about and say that what has been said is taken out of context and deny that as a consequence the petitioner cannot reasonably be expected to live with the respondent.

Disputing desertion

It is also difficult to defend against claims of desertion if it is based upon proven fact. If desertion for over 2 years has occurred, there can be no defence. A defence may only be possible if:

• It is denied that there was desertion at all;
• Desertion did occur but for no longer than two years;
• Cohabitation was resumed for a period in excess of six months;
• The desertion was consensual.

Example answer to a desertion petition:

The respondent, in answer to the petition filed in this suit, says as follows:

1. That s/he denies that the said marriage has irretrievably broken down.
2. The respondent admits that between … and … s/he lived separately and apart from the petitioner but avers that from the … to … the petition here in the and therefore for a period in excess of six months in all he lived together with the petitioner at…

Disputing separation petitions

It is not easy to defend a separation petition. Either you have been living separately or you have not. In the case of a two year separation you can simply withhold your consent and the petition will not be able to proceed, or will at least be postponed for three more years. Consent can be withdrawn any time up to pronouncement of decree nisi.

If the petition is based upon a five year separation, where consent is not required, it may only be possible to defend if there has been a period of return to cohabitation during the five year period. However, the statutory defence of grave financial hardship is available.

There is a specific defence to five year separation petitions, where a divorce would cause grave financial or other hardship. The classic example of this type of defence is the likelihood of being ostracised in one’s community for loss of the married status.

Cross petitions

Cross petitions are different to the above, as the marriage is accepted as being over but the respondent wishes to place blame upon the petitioner. There is doubtful purpose and little advantage usually in this but it will then be a case of presenting a cross petition.  It will be pleaded in much the same way, using the heading ‘Cross Petition’ instead of ‘Answer’, but instead of denying that the marriage has irretrievably broken down you will enter a petition with allegations that your spouse is responsible for the irretrievable breakdown of the marriage showing one of the five facts.