My earlier post was to rant a bit:angry: . Now, i need to get down to business and ask for help.
Stbx has decided to defend Petition and as partner is self-repping, i would appreciate any help with my questions:
-what does a defence entail?
-I know she is supposed to send an 'answer' to the court;what does that need to include?
-is my partner to wait until she sends the answer before submitting D80 and D84?
-can you self-rep in a defended divorce or you need a solicitor/barrister?
-how soon will a date be set for the first hearing and can the defence be quashed by the court at this stage or it will have to go all thw way?
my ex defended the divorce. In reality it is very hard to defend. The judge(s) were highly critical of the ex in his attempts for the simple reason that if one person says the marraige is over - it's over. My ex's defended divorce was not successful for the simple reason that he could not prove that the marriage had not broken down.
To answer two of your questions (from my own experience - not a solicitor):
1. If your partner chooses to defend the divorce the judge will try and establish if they are defended the divorce (the is only one ground for divorce ie - the marriage is over) or if it is the particulars which he/she is unhappy with.
If it is the latter - then it is easy to solve by agreeing them. If it is the former ... good luck to them. Be sure to indicate you intend seeking costs if the defence is unsuccessful.
2. I had three hearings - largely due to the courts utter disbelief that ex was defending. Each hearing lasted about 15-30minutes with the judge trying to get ex to see reason. The last hearing we agreed to let him file a cross Petition using whatever (within reason) particulars he liked. But because he played so many games the courts finally granted the Nisi based on my Petition.
The whole process from start to finish took just over 12 months(excluding the children matters and financial matters which each had two or three hearings each). I was very lucky perhaps that the judges at each of the hearings were quite robust.
In my experience the courts have very little patience for defended divorces. The burden of proof is on the party defending the divorce. The court my divorce was heard at had no idea how to deal with this and had to be followed up at regular intervals.
I had a solicitor representing me - but in hindsight it was not necessary.
Thanks very much for your post;quite helpful.it's not my partner defending,it's the stbx(just to clarify,i think you may have thought it was the other way round).Nevertheless, i appreciate your input.xx
If the respondent intends to defend they have 28 days from receiving the Petition to sending court the "answer".
The answer is the reason/s the respondent wishes to defend, as onestep said it could be an issue with the factor used or the particulars, the only ground for divorce is the irretrievable breakdown of the marriage, you then choose a factor to show this has happened the factors are 2 years separation by consent 5 years without consent desertion unreasonable behavior and adultery, if the respondent claims the marriage has not broken down the test for the judge is simple, ask the applicant if they say yes it is then it is and the defense will fail.
The applicant cannot proceed with the divorce until a judge accepts the Petition, so no other forms are filed.
The defense can be done without a lawyer but it will fail.
There will be no first appointment until this issue is settled.
We had a solicitor on site a while back who in 22 years of practice dealt with two fully defended cases both ultimately failed with costs awarded to the applicant, active8 said the costs were huge for the respondents and when a solicitor says huge read obscene/eye watering.
Most defenses are short lived even if it means granting the Decree Nisi against the wishes of the respondent.
Just to expand on the theme. Whilst a successful defense is almost impossible (except in the case of alleged adultery), it is fairly common to defend and cross-petition for divorce.
In the case of a cross-petition, the divorce will be granted and both parties usually end up agreeing which of the petitions to drop, the other being awarded a Decree Nisi... really it is about agreeing who pays the costs and forcing the Petitioner to negotiate reasonable particulars within the Petition.
This waste of effort is most common when the petitioner fails to inform the respondent that a Petition is being lodged or fails to allow modification of the particulars before filing the petition in court.
If they cannot agree before going to court, judges do not like petitioners who are self-justified and belligerent any more than respondents who are self-centred and defensive.
I am very late to the party, but there seems to be a lot of nonsense in this thread and I thought I'd add my comments to even things out a bit.
onestepatatime: "if one person says the marraige is over - it's over"
No, it's not. Whatever may have happened in an individual hearing or what may be the common impression of what happens in these cases, the law states that the judge has to REFUSE the petition unless the petitioner can *prove" their case.
onestepatatime: "...The burden of proof is on the party defending the divorce"
That, too, is incorrect. From the legal point of view, it is on the person bringing the case.
dukey; "if the respondent claims the marriage has not broken down the test for the judge is simple, ask the applicant if they say yes it is then it is and the defense will fail"
Wrong again. The Applicant (Petitioner) needs to PROVE (in the case of an UB petition) that the Respondent's behaviour has been such that no reasonable person would expect them to live with the Respondent. That's a higher barrier for the Petitioner than is commonly suggested on these forums.
There is far too much negativity on these boards when it comes to defending a divorce. Sometimes there are good reasons to defend and where there are good reasons the odds are not the "less than 1%" that some people will have you believe.
I felt compelled to post in this thread because it keeps ranking high in Google searches and it has a lot of misleading information.