How to Manage a Divorce When One Partner Will not Consent to it? Can the Divorce Still Proceed?

How to Manage a Divorce When One Partner Will not Consent to it? Can the Divorce Still Proceed?
Photo by Karolina Grabowska: https://www.pexels.com/photo/mother-scolding-teenage-daughter-using-phone-6957246/.
Joanne McDonald
Joanne McDonald
Associate
Furley Page

When the process for divorce was overhauled in 2022 with the implementation of the Divorce, Dissolution and Separation Act 2020, a major change was the removal of the ability of one person to “defend” a divorce, based on their view that the marriage had not broken down irretrievably.

Under the new procedure, even if the person receiving a divorce application (the “respondent”) does not want a divorce, the person who does want the divorce and made the application (the “applicant”) cannot be prevented from moving forward with it, save for in very limited circumstances. Consent and co-operation are no longer required to obtain a divorce.

Now the respondent can only dispute the proceedings based on technical issues, such as to challenge the jurisdiction of the court (which means that the person disputing the divorce doesn’t believe that the courts of England and Wales have the power to deal with the case and that it should be dealt with elsewhere), to argue about the validity of the marriage or civil partnership, or to assert that the marriage or civil partnership has already been legally ended.

When the divorce application has been served on the respondent (typically this means they have been sent the paperwork by email), they have 14 days to respond, or slightly longer if they live outside of England and Wales. A respondent can set out on this form an intention to dispute the divorce.

If a respondent wishes to dispute the proceedings, they must then send to the court an “answer” on form D8B saying exactly why they dispute the proceedings. This must be sent to the court within 21 days from the date on which their acknowledgement of service was due. At the time of writing, an “answer” cannot be filed via the online portal, so must be sent to the Court on paper.

Upon receiving an “answer” from the respondent, the court will, within 21 days, arrange a hearing for the judge to set out what further evidence is required to enable a decision to be made about whether the divorce can proceed. Once the court has that evidence, a further hearing will take place and unless an exemption applies, it will do so in open court, which means the hearing is open to the public and press to attend.

Given the limited circumstances in which a divorce can be disputed now,  that situation is rare so specialist legal advice should be obtained.

More common than disputed proceedings are those in which a respondent simply fails to acknowledgement service of the divorce application on time, which can lead to a delay in progress. If a respondent does this, an application can be made by the applicant to “deem service”. The effect is that the Court will confirm it is satisfied that the respondent has received the divorce application and the applicant will then be able to progress the divorce without any involvement by the respondent.

Read more articles by Joanne McDonald.

About Joanne McDonald

Joanne joined the Family law team at Furley Page as an Associate in October 2021.  Joanne is a member of Resolution for Family Law and adheres to a Code of Practice promoting a constructive approach to the resolution of family matters.

Joanne has always had a passion for family law and demonstrates this through her commitment to clients. She understands that the breakdown of a relationship can be distressing and strives to ensure that clients feel supported through the process. As well as relationship breakdown, Joanne advises clients prior to marriage in respect of nuptial agreements and clients who are making the decision to cohabit with a partner and want to ensure clarity of future arrangements.

Contact Joanne McDonald, Associate Solicitor in Furley Page’s family law team on 01634 828277 or email JLM@furleypage.co.uk.

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