When a divorce petition has been issued but the Respondent does not accept that the marriage has broken down irretrievably or does not accept the grounds on which the petition has been issued, this leads to defended divorce proceedings.
Defended divorces are uncommon as they can be quite costly and often usually both parties agree that the marriage has come to an end.
Usually, the Court encourages parties to a defended divorce to look at alternative means of solving their dispute.
Defended Divorce Proceedings
Where a divorce petition is to be defended, the Respondent must file with the Court an Acknowledgement of Service indicating a desire to defend the Petition within 8 days.
Following this, the Respondent then has 21 days to file their defence known as an Answer. The Answer is the formal response to the Petition and follows a very similar format to the Petition itself. The Answer “answers’ the Petition in that it references each paragraph and states whether the Respondent accepts or denies the facts of the Petition.
The respondent can either draft the Answer in general terms or specifically answer each and every allegation in the Petition.
Where a divorce case is based on adultery, it is up to the Petitioner to prove that the adultery occurred. It is rare that an Answer in divorce proceedings based on adultery is filed however it is possible to do so if the adultery is denied.
The most commonly defended Petition is that which is filed for unreasonable behaviour. This means that it is especially important that such Petitions are drafted very carefully. Often, unreasonable behaviour petitions are drafted in a way that can aggravate the situation between the parties. This is not helpful for either the Petitioner or the Respondent and is not in accordance with the Law Society Protocol.
Arguing about divorce and making inflammatory allegations is not beneficial tactically or financially to either party and can end up costing a lot of money arguing for the sake of hurting the other party.
However, one exception to this is where there are allegations of gross misconduct. This occurs where one party’s conduct is so unreasonable that they must be taken into account by the court when determining the division of matrimonial assets.
For the court to take such conduct into account, the behaviour must be exceptionally bad. Examples include severe financial misconduct, abuse or attempted murder, abuse or sexual abuse of children or other extreme examples of behaviour. Such cases are quite rare in practice.
What do I do if I receive a behaviour Petition?
If you are the recipient of a behaviour Petition and you do not agree with the allegations made in the Petition, it is possible to amend the Petition so as to make it agreeable to both parties rather than defend the Petition. The Petition will then proceed with the amended allegations as undefended.
If you acknowledge receipt of a Petition, this does not mean that you admit to the allegations against you. Your solicitor can write a letter of response to the Petitioner reserving your position to challenge any of the allegations should they become relevant in later proceedings.
This letter is between lawyers and is not provided to the Court. The court would only see that the Petition proceeding on an undefended basis.