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How to Challenge or Amend a Divorce Petition
“I’ve been served with a Divorce petition and I don’t agree with what it says – what can I do?”
We frequently see clients who disagree with the divorce petition they have received and want to defend the petition. However, this may not always be the best option.
If you are on the receiving end of a petition that you do not agree with there are a number of ways you can deal with it:
Defend the Petition
You need to think very carefully before defending proceedings. If you want to defend a divorce, you will need to prepare an “Answer”. A Court fee will be payable when you or your Solicitor files the Answer at Court. Once filed the other party may file a response to your Answer. This will result in the Court listing the matter for a hearing, and there may be a number of hearings. Defending a Petition will therefore be a lengthy and expensive process.
In cases where you are simply asking the Court to say that they will not grant the divorce because you do not consider that the marriage is at an end, the Judge is likely to take to take a view that if one party believes that the marriage has broken down, then it has and the divorce will be granted.
Issue a Cross-Petition
Along with Defending the petition, you could also issue a cross-Petition for divorce, if you have grounds to do so. You would then, probably, at some stage have to attend a hearing to agree about how the case will progress. This may involve you getting a divorce based on your petition and the Respondent (i.e. your wife or husband) getting a divorce based on her or his petition. The law calls this Cross Decrees. Again this will increase the costs for both of you and the divorce procedure will take longer.
Ask the Other Party to Amend the Particulars
If you would rather avoid all of this but are still unhappy with the allegations, then an option is for you or your Solicitor to ask the other party or their Solicitors to amend the particulars. You can then agree what should and what should not be included. It is usual where one party is represented by a Solicitor for them to send a draft Petition before it is filed at Court so that the allegations can be agreed beforehand and thereby avoid a potential defended divorce.
If the Petition has already been issued by the Court, you could ask the other party or their Solicitor to amend the Petition, particularly if it contains allegations which you do not agree with. A further Court fee will be payable in this case but then the divorce can proceed.
State that you do not Accept the Allegations
When you or your Solicitor completes the Acknowledgement of Service form which you will receive with the Petition, you can state that you do not intend to defend the proceedings but that you do not accept the allegations included in the Petition. This highlights to the Judge that you are not admitting to this behaviour but it enables the divorce to proceed.
What Usually Happens?
It is rare for a Respondent to defend a petition for divorce, or cross petition. This is partly due to the expense involved.
It is also very rare for behaviour allegations to affect any financial settlement. The Court will not take any allegations into account unless it is conduct which “would in the opinion of the Court be inequitable to disregard”. The rare occasions upon which allegations are taken into account are:
- Financial misconduct: for example a party has gambled away the family money
- Litigation misconduct: for example if a party has been highly obstructive or dishonest in court proceedings.
- Other misconduct: this which would need to be extreme to be taken into account and can include murder or violent assault to the extent of disabling the spouse.
Things to Bear in Mind
You should bear the following in mind if you are considering defending a Petition or filing a cross-Petition:
- a Petition is not a public document so it should not be seen by anyone other then both parties, their legal representatives and the Court;
- if your wish to defend is purely based on wanting to prevent the divorce, you are going to be unlikely to succeed in preventing it;
- a defended divorce or cross-petition will cause delay and increase costs.
Please Note: W. Davies Solicitors have now closed their Family Department.
No new appointments are being made.