To discuss contested divorce it is necessary to distinguish between two separate processes:
- The process of initiating a divorce petition, which leads to document known as a Decree Absolute (which legally dissolves the marriage).
- Resolving financial matters on divorce.
Typically, the divorce petition proceeds uncontested, then the parties turn their attention to dealing with financial matters. Financial matters might not be easily agreed and can end up “contested” but that is a different concept in this context.
When family lawyers discuss “contested divorce” we are referring to contesting the divorce petition itself – so that the divorce cannot proceed. If the divorce does not proceed in England, then the English court does not have the power to make orders in respect of dividing assets, pensions and income.
There are three potential defences to a divorce petition:
- Challenging the fact upon which the divorce has been initiated
- That the English court does not have jurisdiction
- That England and Wales is the not the appropriate forum for the divorce
(i) Contesting the facts of the divorce
As at January 2022, the only ground for divorce is the irretrievable breakdown of the marriage. The Applicant has to plead one of five facts which establish irretrievable breakdown: adultery, unreasonable behaviour, 2 years separation with consent, desertion for 2 years, and 5 years separation – How do I apply for a divorce? – Expatriate Law.
The most commonly cited of these facts is the “unreasonable behaviour” of the other spouse.
If a Respondent spouse receives an unreasonable behaviour petition, they might not accept certain behaviour allegations. However, merely disagreeing with what the Applicant has written is rarely a good reason to contest the divorce. Contesting a divorce petition for these reasons alone is a very contentious and expensive process which is highly likely to fail.
It is established practice is for the Respondent to agree to the progression of the divorce, while stating that they do not agree with the particulars, and that they reserve the right to respond if the allegations are relied upon in the context of financial and children proceedings.
It should be noted that the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) will come into force from 6 April 2022. This legislation will have a profound impact on the divorce process in England and Wales, including the eagerly awaited provision for “no-fault divorce”. At this stage, it is understood that spouses will no longer need to evidence one of the five facts and can instead provide a statement confirming the irretrievable breakdown of the marriage. This statement can be provided by one spouse and then agreed by the other upon receipt or given by both parties as part of a joint application.
As a result of these changes, spouses will no longer be able to contest an application for divorce based on the facts because the court will accept an independent statement of irretrievable breakdown as fact. However, divorce proceedings may still be contested based on jurisdiction or forum.
(ii) Contesting the jurisdiction of the divorce
For a divorce to proceed in England, the Applicant must be able to demonstrate that they have jurisdiction to do so. Jurisdiction is based on periods of residence in England and Wales or the retention of English or Welsh domicile when either or both parties live abroad (see more: Divorce in the UK through English Courts – Expatriate Law).
English family law is typically more favourable to the wives making financial claims compared to most overseas jurisdictions. The power of the English court to make financial orders arises only when it has jurisdiction to hear the divorce. There is therefore a temptation for those with tenuous links to England to attempt to secure English jurisdiction for divorce, and there can be good reasons for the respondent to consider defending an English divorce petition on jurisdictional grounds if it is viable to do so, so that the divorce (and the financial matters that follow) have to be heard in a financially more favourable jurisdiction instead.
Contested jurisdiction cases tend to revolve around whether the Applicant has retained their English domicile of origin or domicile of choice despite living abroad.
(iii) Contesting the forum of the divorce
For international couples, there is often a third basis upon which a divorce can be contested. The Respondent can accept that the English court does have jurisdcition to deal with the Applicant’s petition, while simultaneously arguing that the English court is the not the most appropriate forum in which the divorce should proceed. The Respondent must have initiated a divorce in the alternative country, which they say is the more appropriate forum, before they challenge the English petition on this ground.
Although forum challenges are decided on factors such as the physical location of the parties and their children, the location of their worldwide assets, and enforceability of the eventual orders; the underlying reason to challenge forum is based on an assessment that the other jurisdiction is likely to be more favourable in terms of how financial matters will be handled.
It should be noted that since Brexit, there is no longer an automatic assumption that the EU Member State where the first divorce petition was granted will be allowed to progress.
There is rarely anything to be achieved in contesting a divorce petition in a domestic context only on the basis that the respondent is upset with the unreasonable behaviour particulars. Such a defence will almost certainly fail.
However, in the international context, contesting jurisdiction and forum can be a legitimate and proportionate way to proceed when there is substantial wealth at stake and multiple jurisdictions in which the divorce can legitimately proceed.
Any individual considering issuing proceedings in England should always take specialist advice about potential jurisdictional vulnerabilities from the outset. If a Respondent receives an English petition, and the family have connections to other countries, they should urgent advice before replying to any correspondence or completing any court papers.
If you are concerned about any part of the divorce process in England then please do not hesitate to get in touch with Expatriate Law for a discussion with one of specialist lawyers.