Does my spouse have to agree to the divorce?
As mentioned in the section relating to the facts of divorce, the respondent must admit to adultery in order for a petition to proceed on this basis, and if the petition is to be issued on the basis of two years' separation with consent, the respondent must agree that there has been separation of over two years and that they are happy for divorce proceedings to be commenced.
However, if a petitioner wishes to issue on behaviour or on five years’ separation, the consent of the respondent is not required. In relation to behaviour, the respondent can complete the Acknowledgement form to indicate that they do not accept what the petitioner is saying about them but that they agree that the divorce should go ahead.
In some cases however, the respondent does not agree that the marriage is at an end, or there is strong argument that he or she will suffer significant hardship should the marriage be legally ended and therefore wishes for it to continue. In these cases the respondent has the option to defend however it should be noted that these cases are becoming rarer.
If the respondent wishes to defend, then the first thing that a respondent will need to do is answer ‘yes’ on the Acknowledgement of Service form at the question “Do you intend to defend?”. The Acknowledgement form should be completed, signed and returned to the Court within 7 days of the respondent being served with the divorce petition.
Within 21 days after that, the respondent should file at Court what is known as an ‘Answer’ in Form D8B setting out the reasons why it is believed the marriage has not irretrievably broken down or, if the petition is based on 5 years’ separation, why the respondent believes that he/she will suffer grave financial or other hardship should the marriage end. There is a Court fee of £245 payable upon sending in the Answer.
The Court is likely to then list the matter for a short directions hearing when the Judge will hear briefly from both parties and determine whether any further evidence is required before the Court can reach a final decision, for example full statements from both parties. The case will then be listed for a contested final hearing where the petitioner and respondent will give evidence from the witness box and will be cross-examined by the other party’s representative. The Judge will then determine whether the marriage should be dissolved. However, if one party strongly believes that the marriage has broken down irretrievably there is very little chance that the Court will not allow the marriage to be dissolved and if the respondent fails to stop the petition going through, he/she will have to pay the costs of the petitioner in addition to their own.
Another option open to the respondent is to cross-petition if they feel that they have just as much reason to divorce the petitioner. The respondent will issue their own petition, citing the reasons and will still have to provide the marriage certificate and pay the fee for issuing a petition.
Again, the Court will list the matter for a directions hearing, obtain further evidence and then list the matter for a contested hearing before deciding on whose petition the divorce should proceed,
Once the Court has made a decision, the divorce proceedings will continue in the normal way.
So, there is a difference between the respondent not being happy about what is being said about them in the petition, but accepting the marriage is over, and the respondent believing that the marriage has not irretrievably broken down. If a respondent is simply not happy with what the petitioner has accused them of in the petition, then he/she should think very carefully before defending the divorce or cross-petitioning as the delay and costs involved may not be worth the time and effort, when it may just be a matter of pride at the end of the day as the other party ‘got there first’.