Uncontested vs contested divorces
Not every divorce has to be acrimonious or take forever to be finalised. An uncontested divorce is one in which the respondent doesn't defend the divorce, making the whole process quicker and easier.
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What's the difference between uncontested and contested divorce?
If you've never been involved in a divorce it would be easy to assume that all divorces involve long, costly and acrimonious court proceedings. In reality though, many divorces are granted with minimal disagreement and without couples having to make any court appearances at all.
One of the key reasons for this is that most divorces are uncontested, which means that it isn't disputed by the other party. Because it isn't defended, it costs much less than a contested divorce, takes less time and doesn't require you to attend any court hearings.
Contested divorces are actually quite rare. Even when they do occur, the divorcing couple are usually required to attend only two court hearings. But who decides if yours will be a contested or uncontested divorce?
Who is a Petitioner and Respondent in divorce?
In England and Wales, the partner who begins is called the Petitioner. The other party is called the Respondent. The Respondent will be sent a copy of the petition and an Acknowledgement of Service form by the court. This form contains a number of questions, including whether or not the Respondent wishes to defend against the divorce.
In most cases, people answer 'no', meaning that the divorce can proceed uncontested. However, in some cases, the respondent answers 'yes', which results in a more complicated process.
How does an uncontested divorce work?
Uncontested divorces can be processed by courts on paper and there's no requirement for either party to make an appearance in court. Usually, the process takes between four and six months to complete. However, the timeframe is dictated by how busy the court is and how quickly both parties complete and file the necessary paperwork.
How does a contested divorce work?
In cases of contested divorce, the Respondent is required to detail the reasons why they are defending the divorce. Once the petition has been served on the respondent there's a time limit of seven business days to file this Acknowledgement of Service with the court.
There are many different reasons why people decide to contest divorces. For example, they might not agree that the marriage has broken down irretrievably or they might dispute the reason for divorce stated by their spouse in the petition. There is only one 'grounds' for divorce in the UK, which is irretrievable breakdown. However, this must be proven by one of five acceptable reasons, which are:
- Unreasonable behaviour
- Two years' separation where both parties agree
- Five years' separation if one party won't agree
In contested divorces, the court will require both parties to provide evidence to support their case. Once they have done this, a judge will determine whether or not the spouse who petitioned for divorce is entitled to it.
What are the outcomes of a contested divorce?
As already noted, it's quite rare for people to contest divorces, and even when they do it's difficult to succeed in these defences and persuade a judge not to allow a divorce to proceed if one of the five reasons we talk about above has been demonstrated. Also, it's important to be aware that when respondents don't succeed in contesting their divorce, they are usually ordered by the court to pay the legal costs of the petitioner.
When respondents state in their Acknowledgement of Service form that they wish to defend a divorce, they only have seven business days plus 21 days after service of the original petition, exclusive of the day of service, to submit their answers detailing the reasons why.
If they don't meet this deadline, the person seeking the divorce can carry on with the proceedings, and the court will deal with the divorce as though it hasn't been contested at all.
Can I use mediation to help a contested divorce?
Because contested divorces take longer, incur further fees and are more stressful, it's best if you can avoid taking this route with your spouse. One option if you can't agree to get a divorce, or on why you're separating, is to arrange mediation. This process involves using a specially trained third party to help you reach an agreement without having to argue your case in court. It could reduce your costs and make your separation less traumatic.
What happens about children, property and money in a divorce?
Whether it's contested or not, a divorce simply ends your marriage contract. It doesn't determine what will happen to any children, property or money you share with your ex-partner. These matters have to be decided separately and reaching a on divorce can be far more time-consuming and difficult than getting from the initial petition to the decree absolute that means you're no longer married.
Do I need legal advice for a contested divorce?
If you can't come to an agreement with your partner, taking your case to court may be the only option. If you find yourself in this situation, it's really important that you have an expert solicitor who can advise you on the best approach to take and guide you through the process. They will be able to help you decide which of the five reasons for divorce is the most likely to succeed in court. They can also communicate with your ex partner and their solicitor on your behalf if you don't want to have any contact with them.
That's why, regardless of whether your divorce is contested or uncontested, you can take some of the anxiety and uncertainty out of the situation and ensure that your interests are protected throughout the process by talking to our experienced family solicitors as soon as possible.
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