Hello clawrence,
Thank you for your question.
A contested divorce is an expensive, long and public process and
therefore most spouses prefer not to go through the process but to
agree on their own terms privately before meeting with the judge.
The Guardian
"Why lawyers want couples to make up after the break-up"
http://observer.guardian.co.uk/cash/story/0,,1686426,00.html
"A contested divorce could easily swallow £40,000 and drag on for 18
miserable months before being resolved."
Here is the step-by-step procedure in a contested divorce. It is
outlined on the following page under the "Timeline" section and on the
Hart Brown page, and I summarize the two below.
Coles-Miller Solicitors LLP
http://www.coles-miller.co.uk/services/personal/family/divorce-procedure/
Hart Brown Outlines for Divorce Procedure
http://www.hartbrown.co.uk/pdf/divorce_procedure.pdf
--The spouse who starts the divorce is known as the Petitioner, the
other as the Respondent. If there are charges of adultery involved,
the alleged third party is known as the Co-Respondent. The divorce
petition, statement of children's arrangements, statement of advice on
reconciliation (a declaration that you have taken unsuccessful steps
to reconcile with your spouse), marriage certificate, and court fees
(usually in the range of £180-£210).
--The court or the Petitioner's solicitor sends a copy of the
documents by mail to the Respondent, together with a statement of
acknowledgement that must be filed known as an "Acknowledgement of
Service." A copy of the petition, but not the arrangements, is sent
to any Co-Respondent. If the Respondent or Co-Respondent is
represented by a solicitor, the copies are sent to the solicitor's
office.
--The Respondent has eight days upon receipt of the papers to complete
the Acknowledgement and return it to the court. The Respondent states
whether he or she agrees with the court's jurisdiction, intends to
defend the petition, objects to paying any costs or court costs
outlined, and agrees with arrangements for the children. Longer time
limits apply when the Respondent lives outside of England or Wales.
--If the Respondent states that he or she does not agree with terms of
the petition, the case is referred to a District Judge. The District
Judge will ask for more information regarding the disagreement. There
may be a short hearing for the couple to explain their respective
positions.
--The Respondent can cross-petition for a divorce on different grounds
if the Petitioner's grounds are not correct or objected to.
--Within 29 days of receipt of the divorce papers, the contesting
Respondent must file an Answer (again, longer time applies when
residency is outside England or Wales). With the filing of an Answer,
the petition has been objected to and the arrangements outlined in the
divorce petition do not automatically apply. Even after an Answer has
been filed, it is still possible to negotiate to an agreement, and
divorce cases rarely end up in fully contested court. It will slow
things down, though.
--Hearings are held into what the disagreements between the two
parties are, with solicitors representing all parties involved.
--When an agreement has been reached, a decree nisi can be issued by
the judge. If there is a further argument about court costs, both
parties can attend this hearing and discuss the issue.
--If an agreement has not been reached about the children, the judge
can recommend that the parents attend an informal appointment with him
or her to decide on a course of action in regards to the children.
The judge may request the children or a family reporter to become
involved in the process at this point. If a solution is not reached,
a final divorce decree (decree absolute) can be delayed.
--Once arrangements for children have been settled and six weeks and
one day have passed since the declaration of decree nisi, the
Petitioner may apply for decree absolute by sending the court the
appropriate form and fee.
--If the Petitioner has not responded to the court for decree absolute
three months after the initial period when he or she could do this,
the Respondent may file papers with the court to do so.
--After the decree absolute is issued, the parties are divorced and
each is free to remarry.
Each party will certainly need divorce lawyers, as a contested divorce
proceeding is like any other court trial. The parties will need to
attend hearings and discuss the contested issues.
Just Divorce UK
http://www.justdivorce.co.uk/rising_price_of_love.htm
"Contested divorces are more often than not very expensive, because
two Divorce Lawyers are required. Since Divorce Lawyers charge an
hourly basis, the longer it takes to reach a settlement, the higher
the bill you will receive."
Lawpack UK
http://www.lawpack.co.uk/B777114A2F0540BB9CC6C143091C2265.asp
"If one spouse is unwilling to divorce, the divorce will be contested
by that spouse. In this case, the services of a solicitor will be
needed to determine whether there are grounds for divorce."
Collaborative Divorce
http://collaborative-divorce.com/glossary.htm
"A fully contested divorce may include disputes over custody,
visitation, property division and family support. The contest may be
over one, several or all issues. The parties may engage in discovery
over financial issues or even with respect to their parenting
abilities and personal histories. If custody or visitation is
disputed, studies may be conducted by court officers and/or private
experts retained by each party. If finances are in dispute, expert
appraisers and forensic accountants may be engaged by each party.
Multiple court hearings, with both lawyers "on the clock", may take
place on matters such as temporary custody, visitation, alimony and
child support. Depositions are often taken of both parties and other
persons relevant to the litigation. Finally, a contested trial takes
place with witnesses and experts testifying, leading to a decision on
the contested issues by a Judge."
What the actual processes are will be determined by why the divorce is
being contested-- does the contesting party not want a divorce at all?
Or are both parties wanting to divorce and simply not agreeing on the
terms? Are there financial or custody difficulties involving
children? Depending on the individual circumstances and whether one
or many issues are involved, many different time lengths and
situations could arise.
For instance, in a case where adultery has occurred, the delays could
vary depending on the evidence available.
Simple Free Law Advisor-- "Effect of Adultery on Divorce and Residence Orders"
http://www.sfla.co.uk/adulteryeffects.htm
"When applying for divorce on grounds of adultery, it is necessary to
provide the courts with as much evidence as possible about the alleged
adulterous affair, such as places and dates. If the partner who has
had the affair or affairs does not contest the divorce, then it will
usually be granted with little difficulty. However, if the divorce is
contested, detailed evidence will be required to satisfy the courts
that the affair actually occurred, and the process may be lengthy and
expensive. It is not necessary to name the ?co-respondent? ? the
person with whom the adulterous affair took place - and many lawyers
advise against doing so as it may cause unnecessary delay and
additional expense if the co-respondent contests the petition. There
is often little reason for a co-respondent to cooperate, particularly
as they may be ordered to pay a portion of the court costs if a
divorce is granted."
In a case that involves a Respondent who does not want a divorce and
tries to disprove grounds for divorce, the Respondent will rarely be
successful.
Wolferstans Solicitors Guide to Divorce Steps
http://www.wolferstans.com/family/GUIDE_DIVORCE_STEPS.pdf
"If the reality is the marriage has broken down as far as the
petitioner is concerned then usually very little
is to be gained from defending or cross praying. The main problems of
contested divorce are that they
are expensive emotional more protracted and often acrimonious. The
final hearing is a trial in open court.
If the defence is unsuccessful you probably will be ordered to pay the
other party?s legal costs as well as
your own and these could be many thousands of pounds. The risks and
uncertainty of outcome rightly
deter most people."
---------------
Without any protests on the part of the Respondent, a divorce case
takes five months at a minimum. A contested case can take twice as
long or much longer.
From the above Wolferstans page:
"If a divorce is contested throughout it will take a minimum of 9
months and probably 12 months to get it
to trial. The hearing is before a Judge who hears the oral evidence of
the parties and their witnesses and
the legal arguments of their lawyers before deciding whether to grant
a decree nisi on the petition or
cross- petition ( if there is one).If both are proved he can grant
cross- decrees nisi. If not proved that is
the end of it and there is no divorce. The parties remain married
until one or the other starts again and
successfully proves legal entitlement to a divorce. In some case that
could mean waiting for 5 years living
apart to elapse if no other fact can be established. If this situation
arose there are other ways of dealing
with money children and property issues outside of divorce law and
procedure. If there is a decree nisi
the procedure for making it absolute is the same as for undefended divorce."
---------------
"Is it possible to delay divorce?"
It is possible. In England and Wales, certain conditions must be met
in order to get a divorce. The conditions are adultery, unreasonable
behaviour, desertion for a period of less than two years, living apart
for two years uncontested, or living apart for five years in a
contested divorce. If adultery or unreasonable behavior does not
exist, both parties do not agree to a divorce and the action is
contested, the person filing for divorce must wait for five years of
living apart before being able to file for divorce.
Simple Free Law Advisor UK-- "Grounds for Divorce"
http://www.sfla.co.uk/divorcegrounds.htm
"If your spouse has contested your divorce and you have subsequently
lived apart for five years, you can petition the court for divorce
regardless of their feelings. Nevertheless, although you may think
this is an absolute ground for divorce, you should bear in mind that
even here your spouse may have grounds to defend your petition."
However, this is difficult to do; just like the catch-all
"irreconcilable differences" in the United States, "unreasonable
behaviour" can be cited by a petitioner and a judge will usually
accept that if someone is claiming this, the marriage has
irretrievably broken down and the petition should be granted.
The one exception that I could find to the five-year separation rule
is that some Respondents may declare that financial hardship will
result if they are divorced.
The Practical Lawyer
Divorce Suit Module
http://www.legalease.co.uk/cpdonline/f-sample.htm
"If [the divorce petition is] based on five years? separation, advise
of the possibility that the respondent may oppose based on hardship,
in particular where dissolution of the marriage would result in the
respondent losing a widow?s pension."
----------
"Can the result be appealed?"
The result is pretty final. There is a possibility of getting a
decree nisi or decree absolute rescinded through something called a
rescission, but it is done rarely. Both parties must either agree or
misrepresentation or fraud alleged (for instance, the Petitioner
promised not to have decree absolute declared until all ancillary
relief is figured out, but files for it anyway and the Respondent
objects to this misrepresentation). This is a very rare occurrence
and there is almost no hope of it happening. Once a decree absolute is
filed, the marriage has ended.
In most cases, a decree nisi will not be issued until both parties
agree to terms of divorce, so an appeal would not be an issue because
the person appealing would have already had to have agreed to the
terms.
The terms of the divorce, such as the ancillary relief, can be
appealed to the highest court, but the divorce itself is a done deal
once granted.
Lawpack Divorce & Separation
http://www.lawpack.co.uk/faq_divorce_and_separation.asp
"However, an appeal of an interim order is a serious matter which
shouldn't be undertaken frivolously and it's also unlikely to be
successful. District Judges and Sheriffs enjoy enormous discretion and
unless there's an error in law or an error in fact, the appeal courts
are unlikely to interfere with their judgment.
Moreover, an appeal can be quite expensive. Since the loser normally
pays the legal fees for both sides, an appeal is something that must
be considered with caution."
Search terms:
(google.co.uk)
contested divorce
contested divorce process
contest divorce
contested divorce procedure
contested divorce months
rescission decree absolute
appeal divorce grounds
If you need any additional clarification, let me know and I'll be
happy to assist you.
--keystroke-ga |
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