Divorce is rarely easy, particularly where one party does not want the marriage to end or where there are disagreements about children, property, finances or future arrangements. Many people still use the phrase “contested divorce”, but since the introduction of no-fault divorce in England and Wales, the meaning of this phrase has changed significantly.
In most cases, it is no longer possible to contest the divorce itself. However, that does not mean that every issue connected with the divorce is automatically resolved. Financial arrangements, child arrangements and the practical steps required to move forward can still become disputed, particularly where one party is being uncooperative.
Why are contested divorces no longer possible?
Before April 2022, a person applying for divorce generally had to rely on one of several “facts” to prove that the marriage had irretrievably broken down. This often meant referring to adultery, unreasonable behaviour, desertion, or a period of separation. In some cases, the other party could defend the divorce and argue that the marriage had not broken down.
This could cause significant stress, delay and expense. It could also make an already difficult separation more acrimonious by forcing one person to blame the other in order to move forward.
The introduction of no-fault divorce changed this. The current system allows one spouse, or both spouses jointly, to apply for a divorce by stating that the marriage has broken down irretrievably. The court does not require either party to prove fault, and the other spouse cannot usually stop the divorce simply because they do not agree with it.
This means the legal focus has shifted away from arguing about who was responsible for the end of the marriage and towards resolving the practical issues that follow separation.
Can I contest a divorce?
In most circumstances, no. There may no longer be a “defence” to a divorce in the way there was under the previous law, and a spouse cannot usually contest a divorce simply because they do not want the divorce to happen or disagree that the relationship has broken down.
However, a divorce or civil partnership dissolution application issued on or after 6 April 2022 can still be contested in exceptional legal circumstances. These are usually limited to technical legal issues, rather than objections to the relationship ending.
Examples may include:
Jurisdiction – where one or both parties live in, or have strong connections with, another country, the courts in England and Wales may not be able to deal with the application.
Validity or subsistence of the marriage or civil partnership – where there is a genuine issue about whether the marriage or civil partnership was legally valid, or whether it has already legally ended. For example, this could include a situation where the procedural rules for the ceremony were not followed, or where the parties have already divorced or dissolved their civil partnership in another country.
These circumstances are uncommon and can be complex. A party considering whether to contest a divorce or civil partnership dissolution application should obtain early legal advice to assess whether there is merit in taking that step.
What can be contested as part of a divorce?
Although the divorce itself is unlikely to be contested, there may still be significant areas of disagreement.
Financial arrangements
Financial matters are often the most contested part of a divorce. Separating couples may need to resolve what happens to the family home, savings, pensions, business interests, investments, debts and income. There may also be questions about spousal maintenance, child maintenance and whether there should be a clean break between the parties.
Even where an agreement is reached, it is important to ensure that it is properly recorded in a legally binding financial order. Without this, financial claims may remain open, even after the divorce has been finalised.
Where agreement cannot be reached, it may be necessary to apply to the court for a financial remedy order. The court can then consider the financial circumstances of both parties and make an order intended to achieve a fair outcome.
Child arrangements
Parents may also disagree about where children should live, how much time they should spend with each parent, holiday arrangements, schooling, communication, travel or other important decisions.
The court’s priority in children matters is the welfare of the child. Parents are usually encouraged to reach agreement where possible, but if that is not possible, an application can be made for a child arrangements order.
A child arrangements order can set out who a child lives with, when they spend time with each parent, and how contact should take place. In more complex situations, the court may also be asked to deal with specific issues such as schooling, relocation or particular parental responsibilities.
The timing of the final divorce order
There can also be strategic considerations around when to apply for the final order, which is the order that legally ends the marriage. In many cases, it is sensible to take legal advice before applying for the final order, particularly where financial matters have not yet been resolved.
Finalising the divorce before financial arrangements are properly considered can have unintended consequences, including in relation to pensions, inheritance, tax or property rights.
What if one party is being deliberately difficult?
One of the most frustrating aspects of divorce can be dealing with a spouse who refuses to cooperate. This may include ignoring correspondence, delaying the process, refusing to provide financial disclosure, failing to respond to proposals, or using children or finances as a means of control.
While this behaviour can cause delays and increase stress, it does not usually mean that the divorce or related applications cannot progress.
If one party refuses to acknowledge the divorce application, there may be procedural steps that can be taken to prove that they have been served or to ask the court to allow the case to continue. If a party refuses to provide financial disclosure, the court can make directions requiring them to do so. In more serious cases, failure to comply with court orders can have costs consequences or lead to further enforcement steps.
Where children are involved, refusing to communicate or repeatedly changing arrangements can also be addressed through structured negotiations, mediation where appropriate, solicitor correspondence or, if necessary, a court application.
The right approach will depend on the circumstances. Sometimes firm correspondence from a solicitor is enough to move matters forward. In other cases, court proceedings may be needed to create a clear timetable and prevent one party from controlling the pace of the separation.
Taking advice early
Taking early advice can help you understand your rights, avoid unnecessary delay and make informed decisions about the best way forward. It can also help ensure that any agreement reached is properly documented and legally enforceable.
At DTM Legal, our Family Law team provides clear, practical and sensitive advice to clients going through divorce and separation. Whether you are concerned about an uncooperative spouse, financial arrangements, child arrangements or the wider impact of divorce, our experienced lawyers can guide you through the process and help you protect your position.
If you are facing divorce or separation and need advice on your options, contact DTM Legal’s Family Law team today by emailing family@dtmlegal.com or calling 01244 358 800 / 0151 321 0000.