What if I want a divorce but my partner does not?

Applying for a divorce can be an extremely challenging and stressful time. Discussions about separation and divorce can often lead to upsetting and emotionally driven conversations about some of the things we hold most dear. As specialist divorce lawyers, Hawkins Family Law is here to advise you and help you take the next steps to ensure your divorce goes as smoothly as possible.

There are many questions around applying for a divorce – one problem you may face is that one party may want a divorce but the other does not, even if they do not seek a reconciliation.

We are often asked questions about what to do if a spouse might refuse to agree to a divorce.

The first issue to address is whether or not you are eligible for a divorce. You must have been married for over a year and your divorce must be based upon the irretrievable breakdown of the marriage. This currently has to be presented to the court using one of five facts. Providing you are able to demonstrate to the court that as a result of your spouse’s behaviour it is unreasonable for the court to continue to expect you both to remain married, obtaining a divorce is a reasonably straightforward process.

A contested divorce refers to the circumstances when a spouse wants to defend the divorce petition issued by the court.

This normally occurs when the respondent party does not accept what is said about them within an “unreasonable behaviour” petition or challenges the period of separation relied upon by the petitioner.

The respondent would notify the court of their intention to defend the petition in a document called an Acknowledgment of Service. If defending a petition, the court will list the matter for a series of court hearings to determine the basis of the petition. For this reason, contested divorce proceedings will always be slower and more costly than undefended petitions.

Helpful links:

How to get divorced

How much does a divorce cost?

Contested divorces are extremely rare.  It is reasonably simple to evidence to the court the basis of the marital breakdown to the extent that the court should consider it unreasonable to expect the two parties to continue in the marriage.

Changes to the divorce process expected in 2022, will likely make contested divorces even rarer by enabling all separating couples to pursue a non-fault based divorce.

Successful examples of defended divorces are sporadic.  It is likely to be far more proportionate and practical to work with your spouse on the content of the petition before it is issued by the court than trying to defend it afterwards.

To be granted a divorce, the court must be satisfied that a marriage has irretrievably broken down. Currently, there are five facts (grounds) to prove that irretrievable breakdown to the court:

1. Adultery – The respondent must admit to having sexual intercourse with a person of the opposite sex and as a result, the petitioner finds it intolerable to continue to live with them. A point to note is that you cannot rely upon this fact if you continue to live with your spouse for a period of six months after you have first become aware of the adultery.
2. Unreasonable Behaviour – For this fact, it must be proven that your husband or wife has behaved in such a way which means you cannot reasonably be expected to live with them. Such unreasonable behaviour can be anything from verbal and/or emotional abuse, any form of violence, controlling and/or secretive behaviour as well as financial irresponsibility. This tends to be the most common fact used to start the divorce process.
3. Desertion – Desertion requires the petitioner to show that the respondent has abandoned them continuously for at least two years without agreement or consent. This is by far the least used fact in divorce proceedings as it can be difficult to provide evidence.
4. Separated for 2 years with consent – If you have lived separately from your spouse for a continuous period of at least 2 years and they have also consented/agreed to a divorce, you can then file for a divorce based on this fact. This is one of the non-fault divorce facts currently available.
5. Separated for 5 years – The final fact for which a divorce can take place is when you have lived apart from your husband or wife for a continuous period of at least 5 years. This fact does not require the agreement to the divorce by the respondent party.

Read more about the grounds for divorce here.

The Petitioner will often give detailed evidence, which will be presented in court along with any evidence to support the claim. It is then up to the Judge to decide whether to grant the divorce, and they will take everything into consideration including the reasons why a divorce has been petitioned in the first place.

There is perhaps an important distinction between those that might defend a divorce and those that may simply refuse to engage proactively in the process. You can still proceed with a divorce application even if the other person refuses to co-operate.  The divorce process has in-built mechanisms for allowing a petitioner to progress a divorce in this latter scenario and this is not particularly complex, providing the petitioner has an address for the respondent.

If you are seeking legal advice from a divorce specialist, contact Hawkins Family Law today. We specialise in divorce law and will be able to advise and guide you through the divorce process to make it as peaceful as possible.