No-fault divorce: a respondent in a divorce perspective

A divorce can’t be defended – respondent in a divorce

The central feature of the new system is, of course, that it does away with the need for the applicant to show that the respondent in a divorce was at fault for the breakdown of the marriage.

It does this by simply accepting the applicant’s assertion that the marriage has broken down irretrievably (as under the old system, irretrievable breakdown of the marriage is the ground for divorce).

And if the court must accept the applicant’s assertion that the marriage has broken down irretrievably, that leaves no room for the respondent to deny that the marriage has irretrievably broken down. In other words, the respondent no longer has the opportunity to defend the divorce.

So when the respondent in a divorce receives the divorce papers, all they can do is acknowledge receipt. They have no opportunity to dispute the proceedings, save in very limited circumstances, for example where they do not consider that the court has jurisdiction to deal with the divorce.

After they have acknowledged receipt of the divorce papers there is nothing more for the respondent to do (they will in due course receive the conditional and final divorce orders from the court), save in two particular circumstances, as explained below.

If you can’t defend it, what can you do to slow the divorce down?

This may be of considerable importance to some respondents, where they could be financially affected by getting divorced.

The primary example of this is that they could lose rights under their spouse’s pension. Pensions often provide that if the pension holder dies then their spouse should benefit from the pension, but obviously they will lose that benefit if they are no longer the pension holder’s spouse.

Obviously, the respondent in a divorce can apply to the court for a financial remedies order, including a share of the pension. However, the new divorce system provides that the divorce could be completed within six months, and a financial remedies application can take much longer than that.

What can a respondent do to protect themselves in these circumstances?

The answer is that they can ask the court to consider their financial position as it will be after the divorce, before allowing the divorce to be finalised. The court will then not make the divorce order final unless it is satisfied either that the applicant should not be required to make any financial provision for the respondent, or that the financial provision made by the applicant for the respondent is reasonable and fair, or the best that can be made in the circumstances.

What if the applicant does not apply for the final divorce order?

A divorce will not be finalised unless the applicant asks the court to make the final divorce order.

It can happen that someone applies for a divorce but, for whatever reasons, never applies for it to be finalised. The respondent may themselves want the divorce to be over – what can they do in these circumstances?

The answer here is that the respondent in a divorce can themselves apply to the court for the divorce to be finalised. However, they can only do so three months after the earliest date upon which the applicant could have applied.

The applicant can apply after six weeks have elapsed from the making of the conditional divorce order, which means that the respondent can apply six weeks plus three months after the making of the conditional order.

Upon receipt of the application, the court may make the final divorce order.

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Walker Family Law can help advise you through the journey of divorce, just get in touch today or see our Divorce Support Club for help, support and advice.