divorce

dipsy

Hi can anyone clarify

if you file for divorce on the grounds of unreasonable behaviour, (seperated for 16 months), and the other party contests it, how does the judge, (or whatever they are called in a divorce court), arrive at his/hers decision?

What things are counted as unreasonable behaviour and what things wouldn't be classed as unreasonable behaviour?

does anybody have experience of this?

Does the other party that is contesting need to appoint a solicitor to contest it or can they do it themselves thus eliminating any costs?

What would happen to joint debts, would this be decided in the financial break order?


Many thanks in advance

galvanizersbaby

dipsy wrote: »

Hi can anyone clarify

if you file for divorce on the grounds of unreasonable behaviour, (seperated for 16 months), and the other party contests it, how does the judge, (or whatever they are called in a divorce court), arrive at his/hers decision?

What things are counted as unreasonable behaviour and what things wouldn't be classed as unreasonable behaviour?

does anybody have experience of this?

Does the other party that is contesting need to appoint a solicitor to contest it or can they do it themselves thus eliminating any costs?

What would happen to joint debts, would this be decided in the financial break order?


Many thanks in advance

Hi Dipsy
I believe there are a number of things that could constitute unreasonable behaviour and I'm unsure how the judge would arrive at that decision.
However if one party is contesting the divorce a solicitor would definitely need to be appointed by them (so no chance of eliminating costs)
Indeed if I were the other party I would definitely appoint myself a solicitor.
I think basically if one party contests anything you can say goodbye to keeping the costs down!:eek:

celyn90

Hi OP.

In my limited knowledge of the procedure (I am not a legal professional, so please correct me if I'm not accurate), any behaviour is classed as unreasonable if you could not possibly have been expected to live with it. So this can be anything - such as not allowing a partner out the house, interfering in contact with their family and friends, emotional blackmail, innapropriate relationships with the opposite gender (this one is often used when adultary can't be proven), failing to support a partner, annoying habits - anything that you feel destroyed the relationship really. The petition should be filed as soon after the behviour occured if possible (I think it should be within six months of the last incidence, but correct me if I'm wrong)

A mutal agreement is preferable with regards to finances, mediation can be one way forwards in which case the parties would hopefully come to an agreement themselves. Failing that, the ancilary relief process may be used to help the parties decide who is responsible for what in terms of debt (and assests). It should be borne in mind that all debts are classed as debts of the marriage, regardless of whose name they are in, same with assets, pensions, bonds, trusts, property, items of high value. Normally what would happen is that both parties would make a full disclosure, come to an agreement wth the direction of the judge is needed. If it goes to a full final hearing it can be expensive, so it is preferable for parties to reach an agreement beforehand. The financal stuff (I think) is dealt with after decree nisi if it has to be dealt with by court and it will be dealt with by a different judge so it is seperate from the divorce. The behaviour of the parties within the marraige is only taken into account in exceptional circumstances.

Defending a divorce is regarded as very difficult and often a very expensive process. Sometimes the respondant may move to defend in order to delay but it is still fairly rare for cases to actaully go to court even if they say on the answer that they wish to defend.

In order to defend a divorce, the respondant has to prove that the marriage hasn't broken down and prove that the allegations of the petitioner are not grounds for divorce if that is the reason for the defense. The act of filing for divorce is usually regarded as indicative that the marriage has broken down (it takes two to make a marriage work and if one considers it broken it is broken) and the legal avenues exist for the repondent to excise their own petition to the court if they disagree with the petitioners reasoning or to state on the answer that they don't agree but the marriage has broken down and the divorce should still be granted. The petitioner would in turn be required to supply evidence that the behaviour was unreasonable - so if he was prevented from seeing his friends or family, the friends or family may provide a testement to support his arguement.

Legal aid isn't offered for defending a divorce in most cases and the process can be horribly expensive with little chance of being successful. Adding in the fact that you can end up liable for the other parties costs then it isn't something to undertake lightly. You do not have to have a solicitor - you can act as litigant in person - but I think it would be very unwise to do this without extensive and detailed legal advice.

If you are separted 16 months and want a divorce, then could it be done on two years separation with consent instead as you're not far off that?

best of luck HTH, cel x

dipsy

thanks for your responses

the person filing doesn't want to wait any longer, the 2 year point would be in January 2009 and then another 4/5 months whilst it goes through so basically a year from now.


the person to whom they were married has stated they wont agree to the marriage having broken down due to unreasonable behaviour or agree to the fact they have committed adultery - the two options the solicitor has suggested to the person filing for the divorce.

have I read this right then, the person filing can continue to do so, the other party can contest this at cost to themselves? or they can not contest and incur no costs?


Many thanks again for all your help x

galvanizersbaby

dipsy wrote: »

thanks for your responses

the person filing doesn't want to wait any longer, the 2 year point would be in January 2009 and then another 4/5 months whilst it goes through so basically a year from now.


the person to whom they were married has stated they wont agree to the marriage having broken down due to unreasonable behaviour or agree to the fact they have committed adultery - the two options the solicitor has suggested to the person filing for the divorce.

have I read this right then, the person filing can continue to do so, the other party can contest this at cost to themselves? or they can not contest and incur no costs?


Many thanks again for all your help x

I think that basically that if the other party contests then they have to be prepared to incur the costs and that of the party filing if unsuccessful (as per celyn's post) but if they don't contest then the divorce should go through with the minimal costs (pls correct me if I'm wrong anybody)
I think that the fact that one person is likely to contest the divorce will draw out the proceedings to say the least - do you know the reason they are contesting? - i.e. what are they trying to gain from it?!

celyn90

dipsy wrote: »

thanks for your responses

the person filing doesn't want to wait any longer, the 2 year point would be in January 2009 and then another 4/5 months whilst it goes through so basically a year from now.


the person to whom they were married has stated they wont agree to the marriage having broken down due to unreasonable behaviour or agree to the fact they have committed adultery - the two options the solicitor has suggested to the person filing for the divorce.

have I read this right then, the person filing can continue to do so, the other party can contest this at cost to themselves? or they can not contest and incur no costs?


Many thanks again for all your help x

If it is contested it can go on for way longer than that - trust me. My OH's ex is contesting (he filed on the basis of her UB too) and she has held up the process for 14 months so far - he still is likely to have to wait a much longer time to get a hearing - she won't file herself or accept 2 years or state she doesn't agree with his reasons but admits the marriage is defunkt. She wants to make him wait 5 years (her words). His solicitor has advised him not to withdraw his petition though as if he does or amends it for two years (this ha to have the consent of both parties) and she says no then he is in a position where he hasn't a choice but to wait five years.

If the other party contests they have to find the cash to do it. But it isn't a given that the court will award the costs to the winning party though, so even if he wins he could still have to pay his own costs, which can be substantial. OH has been quoted 5-7K for a full hearing (in addition to the 2.5K he has already paid in fees - this is before his reply to her answer on his petition) and this is a very simple case, no money, property or kids and a very short marriage. If he wins, the judge might tell his ex to pay - but this isn't a given and even if she was told to pay, whether she actually does is another matter.

The cost of defending often puts people off.

It's a really tough place to be in. Have they considered mediation to discuss why the process has stagnated? It might be worth a shot - and it is best to look like all avenues have been explored prior to going to court.

If they don't contest it can go through for the court fee (£300) plus the fee for the decree (£40). It's when there is disagreement it can get expensive.

best wishes, cel x

dipsy

galvanizersbaby wrote: »

I think that basically that if the other party contests then they have to be prepared to incur the costs and that of the party filing if unsuccessful (as per celyn's post) but if they don't contest then the divorce should go through with the minimal costs (pls correct me if I'm wrong anybody)
I think that the fact that one person is likely to contest the divorce will draw out the proceedings to say the least - do you know the reason they are contesting? - i.e. what are they trying to gain from it?!

They have said they are not prepared to be named as being unreasonable or as having an affair....... and wont agree -

they are in a new relationship and have been for some time,

not really clear as to why they wont just agree, think its more of a control issue, just another thing they appear to want to control

However, they have said they are not paying for it, so I guess if the fact is that if they contest it they will have to part with some hard cash they might take a reality check on the whole thing and let it go through.

fingers crossed x x

galvanizersbaby

dipsy wrote: »

They have said they are not prepared to be named as being unreasonable or as having an affair....... and wont agree -

they are in a new relationship and have been for some time,

not really clear as to why they wont just agree, think its more of a control issue, just another thing they appear to want to control

However, they have said they are not paying for it, so I guess if the fact is that if they contest it they will have to part with some hard cash they might take a reality check on the whole thing and let it go through.

fingers crossed x x

Good luck - I think you could be right - if they don't want to pay then they are much better off admitting to the adultery or unreasonable behaviour - lets hope they do the right thing - take care

Mrs_P_Pincher

The Respondent has behaved unreasonably and the Petitioner can no longer be expected to live with him/her or something similar is the wording. It's a subjective test - it's whether the petitioner finds it unreasonable. I saw one unreasonable behaviour allegation that stated that the Respondent had bought ducks and brought them home, knowing that the Petitioner was frightened of them!

It's not clear from the original post (well it's not clear to me!) who we're talking about here, but I would say this:

Saying they won't consent is a control thing. While the prospective respondent is saying they won't play ball and the prospective petitioner is dithering, no-one is getting on with their lives. In the event very few people defend a divorce petition and in 20 years in practice (retired now) I only attended one contested divorce hearing and that ended in total embarassment when the husband told the Judge they were still having a s*xual relationship.

I would say file and be damned! Most awkward customers will cave in at that point. Certainly if they take advice they will be told that it's best to let it go.

Finally, get some proper legal advice, preferably from a solicitor who is a member of Resolution (there's a list on their website)

Mrs P P

Mrs_P_Pincher

PS No the person contesting doesn't need to have a solicitor, any more, technically, than the petitioner does, but anyone trying to contest a divorce without legal experience is going to get themselves in a right mess, which may well actually work to the petitioner's advantage, if they upset the Court enough!

Good legal advice is not cheap, but it can save you money in the end.

Mrs P P

something_girl

I had a divorce case once with one of the points on the petition (behaviour) stating:

'the Respondent cooks me chicken and vegetables and I like pie and chips'

seriously!

the Judge must have a right laugh sometimes.