Legal Grounds for a Contested Divorce

A contested divorce can be a stressful and emotionally draining process for anyone, but it can be especially challenging if you are unfamiliar with the legal grounds that support such a divorce. In this comprehensive guide, we will explore the legal complexities of a contested divorce in Britain, emphasizing the need to understand the legal grounds that support such a divorce.

Understanding the legal grounds for a contested divorce can help you navigate the process and make informed decisions about your case. From adultery and unreasonable behavior to desertion and separation, it’s important to know the legal criteria for each ground and their implications on your case.

In the following sections, we will provide a detailed overview of the divorce process in Britain, including the legal grounds that support a contested divorce. We will also explore the financial and child custody matters that arise during a contested divorce, as well as the legal costs and who pays for them.

Key Takeaways

• Contested divorces can be emotionally draining and legally complex.
• It’s important to understand the legal grounds that support a contested divorce, including adultery, unreasonable behavior, desertion, and separation.
• Financial matters and child custody are critical issues often contested in divorce cases.
• Legal costs can add up quickly in a contested divorce, and it’s important to understand who pays for them.
• Seeking legal advice from a qualified solicitor can help you navigate the contested divorce process and achieve the best possible outcome.

Overview of Divorce in Britain

In Britain, divorce is a legal process that legally ends a marriage. It is governed by the Matrimonial Causes Act 1973, which sets out the legal requirements and procedures for obtaining a divorce.

To get a divorce, one of the parties must apply for a divorce petition. The party filing for the divorce petition is known as the petitioner, and the other party is known as the respondent.

To proceed with the divorce, the petitioner must show that the marriage has irretrievably broken down due to one of several legal grounds.

Upon receiving the petition, the court sends a copy to the respondent, who must respond within a specific time frame. If the respondent agrees to the divorce, the parties can proceed to the next stage. However, if the respondent contests the divorce, the process becomes more complex and can result in a contested divorce.

Divorce Requirements in Britain

To file for divorce in Britain, certain requirements must be met. Firstly, the marriage must have been legally recognized in the UK. Secondly, the petitioner must have been married for at least a year before filing for divorce.

In addition, the petitioner must prove that the marriage has irretrievably broken down, which can be done by citing one of five legal grounds:

1. Adultery
2. Unreasonable behavior
3. Desertion
4. Two years’ separation with consent
5. Five years’ separation (without consent)

If the petitioner can prove that one of these legal grounds applies, the court will grant a decree nisi. However, a decree absolute – the final stage of the divorce process- is not granted until all financial and child custody issues are resolved.

Now that we have a basic understanding of the divorce process in Britain, let’s take a closer look at the legal grounds for a contested divorce in the next sections.

No-Fault Divorce

A no-fault divorce is a type of divorce where neither party has to prove that the other is at fault for the breakdown of the marriage. Instead, the couple only has to declare that the marriage has irretrievably broken down due to irreconcilable differences. This type of divorce is available to all couples in Britain, regardless of their reasons for separating.

One of the main advantages of a no-fault divorce is that it can be less contentious than a contested divorce. It may also be quicker and less expensive, as there is no need to gather evidence or argue over fault.

However, it’s important to note that a no-fault divorce may not be suitable for everyone, and it’s important to obtain legal advice before proceeding. For example, if one party is refusing the divorce, it may be necessary to seek legal intervention.

In terms of the legal grounds for a no-fault divorce, a couple can declare irretrievable breakdown of the marriage based on one of the following four reasons:

Grounds for No-Fault Divorce	Description
Separation	If the couple has been living separately for a minimum of two years, they can petition for a no-fault divorce.
Desertion	If one party has deserted the other for a minimum of two years, the deserted party can file for a no-fault divorce.
Unreasonable Behavior	If one party has behaved unreasonably and the other party cannot reasonably be expected to live with them, a no-fault divorce may be granted.
Adultery	If one party has committed adultery and the other party finds it intolerable to live with them, a no-fault divorce may be granted.

It’s worth noting that a no-fault divorce may not necessarily be straightforward, and there may be disputes over financial matters or child custody. It’s important to obtain legal advice to ensure your rights are protected throughout the divorce process.

Adultery as a Ground for Contested Divorce

Adultery is one of the legal grounds for pursuing a contested divorce in Britain. It is defined as voluntary sexual intercourse between a married person and a person of the opposite sex who is not their spouse.

The criteria for proving adultery in court require the petitioner (the person seeking the divorce) to provide evidence that their spouse has had voluntary sexual intercourse with another person of the opposite sex. It is not necessary to show evidence of actual sexual intercourse, as circumstantial evidence may be sufficient, such as evidence of hotel bookings or text messages arranging meetings.

It is important to note that adultery can only be used as a legal ground for divorce if the petitioner does not live with their spouse as a couple for more than six months after becoming aware of the adultery. If they continue to live together, they cannot rely on adultery as a legal ground for divorce.

In contested divorce cases where adultery is cited as the legal ground, the court will often grant the divorce decree nisi based on the evidence presented. However, complications may arise if the respondent (the spouse against whom the adultery claim is made) contests the claim or if there are additional legal issues, such as financial matters or child custody arrangements.

The Impact of Adultery on Divorce Proceedings

Adultery can have significant implications on divorce proceedings, particularly regarding financial settlements. If one spouse has committed adultery, this may be taken into consideration when dividing assets and determining spousal maintenance payments. However, the court will also consider other factors, such as the length of the marriage and the contributions made by each spouse.

When it comes to child custody arrangements, adultery may also be taken into account but only if it can be shown that the adulterous behavior has had a negative impact on the children. For example, if the adulterous behavior involved exposing the children to potentially harmful situations or individuals.

A Real-World Example

In a recent case, former footballer Jamie Redknapp was granted a divorce from his wife Louise on the grounds of her adultery. It was reported that Louise had been having an affair with her Strictly Come Dancing partner and had admitted to the adultery in court.

The case highlighted the impact that adultery can have on high-profile divorce proceedings and the need for individuals to understand the legal complexities involved in a contested divorce.

Unreasonable Behaviour as a Ground for Contested Divorce

Unreasonable behaviour is one of the legal grounds for a contested divorce in Britain. It refers to behaviour by one spouse that makes it unreasonable to expect the other spouse to continue living with them. This section will explain what constitutes unreasonable behaviour, how it can be proven and its significance in contested divorce cases.

Examples of unreasonable behaviour include physical or verbal abuse, neglect, infidelity, financial irresponsibility, and addiction. It is important to note that even minor incidents of unreasonable behaviour can be used as grounds for a contested divorce. In Owens v Owens, a landmark case decided by the UK Supreme Court, the court ruled that the wife’s allegations of her husband’s unreasonable behaviour were not sufficient to grant a divorce. As a result, it is essential to seek legal advice when pursuing a divorce on the grounds of unreasonable behaviour.

When proving unreasonable behaviour in a contested divorce case, the court will look at the circumstances and the impact of the behaviour on the petitioner. Evidence such as witness statements, photographs, and police reports can be presented to support the allegations. It is worth noting that the court will not investigate the allegations, but only determine whether the behaviour was sufficient to justify a divorce.

Pros	Cons
Allows for a relatively quick divorce process if both parties agree on the grounds for divorce	The respondent may contest the allegations of unreasonable behaviour, leading to a more drawn-out legal process
Can provide a sense of closure for the petitioner, who can move on from the marriage and start afresh	The allegations of unreasonable behaviour can cause emotional distress and strain on the relationship between the parties
Can serve as a deterrent against future unreasonable behaviour in the legal system	If the petitioner is found to have exaggerated the allegations of unreasonable behaviour, it can negatively impact their credibility in court

In conclusion, unreasonable behaviour is a valid legal ground for a contested divorce in Britain. It is important to consult with a legal professional to understand the legal complexities and to provide sufficient evidence to support the allegations. The impact of the allegations of unreasonable behaviour should also be considered when deciding to pursue this ground for a contested divorce.

Desertion as a Ground for Contested Divorce

Desertion refers to the abandonment of one spouse by the other without any reasonable cause or justification. Under British law, desertion is considered a legal ground for a contested divorce. In a contested divorce based on desertion, the petitioner must prove that the respondent has deserted them for a continuous period of at least two years preceding the presentation of the divorce petition.

The deserting party must have left with the intention of ending the marriage. The petitioner must also prove that they have not lived together as a married couple during this period and that there is no reasonable prospect of reconciliation. Desertion is a relatively uncommon ground for a contested divorce in Britain due to the difficulty in proving the required elements.

Advantages of desertion as a ground for contested divorce	Disadvantages of desertion as a ground for contested divorce
Not dependent on the behaviour of either party Can be used if the other spouse is missing or cannot be located Can be a ground even if the parties have not lived in the same house	Requires proof of intent to end the marriage Requires a continuous period of two years of desertion Can be difficult to prove

It is worth noting that desertion can also be challenged by the respondent, who may argue that they did not intend to desert the petitioner or that there was a reasonable cause for their departure. If the court finds in favor of the respondent, the petition for a contested divorce based on desertion may be dismissed.

Overall, desertion can be a challenging ground for a contested divorce due to the high burden of proof required. However, in cases where the other legal grounds for a contested divorce are not applicable, desertion may provide a viable alternative.

Separation as a Ground for Contested Divorce

Separation is one of the legal grounds for a contested divorce in Britain. It refers to the situation where spouses are living apart for a continuous period of at least two years, and the other spouse consents to the divorce. If the separation has lasted for five years or more, consent is not required for the divorce to be granted.

It is important to note that separation does not necessarily mean living in separate homes. Spouses can still be considered separated even if they are living under the same roof, provided they are not sharing the same room and are not engaging in marital relations. This is known as ‘separation under one roof’.

When using separation as a ground for a contested divorce, it is essential to provide evidence that the separation has been continuous and there has been no reconciliation attempts made during that time. This may include providing evidence of separate bank accounts, utility bills, or council tax bills.

It is also worth considering other factors that may arise in a contested divorce, such as financial matters and child custody. When it comes to separating finances, a court may consider the length of the separation and the contributions each spouse made to the marriage. If children are involved, the court will consider their best interests when making decisions about custody and visitation.

Example of Separation Under One Roof

John and Maria have mutually agreed to separate, but they are both struggling financially and cannot afford to live in separate homes. They have decided to continue living in the same house but agreed to live independently under one roof, with separate bedrooms and no marital relations. They have also agreed to share childcare responsibilities equally.

In this case, they will need to provide evidence of their living arrangements and demonstrate that they have been living independently for a continuous period of at least two years in order to use separation as a ground for contested divorce.

Financial Matters in a Contested Divorce

In a contested divorce, financial matters can often be the most complex and contentious issues to resolve. The division of assets, spousal maintenance, child support, and other financial considerations can all impact the outcome of a divorce settlement. It is essential to have a clear understanding of your rights and obligations concerning financial matters during a contested divorce.

One of the first steps in the financial settlement process is to disclose all assets and liabilities to the court. This will include any property, pensions, savings, investments, and debts held by both parties. The court will then consider how to divide these assets fairly between the parties, taking into account factors such as the length of the marriage and the financial needs of each party.

If agreement cannot be reached on the division of assets, the court may order that the assets be sold and the proceeds divided between the parties. Alternatively, the court may decide to award one party a larger share of the assets to compensate for their financial needs or contributions to the marriage.

Spousal maintenance, also known as alimony, may also be awarded in a contested divorce. This is financial support paid by one party to the other to help with living expenses and maintain their standard of living after the divorce. The amount of spousal maintenance awarded will depend on factors such as the length of the marriage, the earning capacity of each party, and any financial needs or obligations.

Child support is another crucial financial consideration in a contested divorce. Both parents have a legal obligation to provide financial support for their children, and the court will take this into account when making a financial settlement. The amount of child support awarded will depend on factors such as the income of each parent, the number of children, and any special needs or expenses.

The Importance of Expert Financial Advice

Given the complexity of financial matters in a contested divorce, it is essential to seek expert financial advice from a qualified professional. An experienced financial advisor or accountant can help you understand the implications of any financial settlement and ensure that your best interests are protected. They can also help you prepare the necessary financial disclosures to the court and provide guidance on negotiating a fair settlement.

It is also important to work with a solicitor who has experience in contested divorce cases. They can provide guidance and support throughout the divorce process, advise you on your legal rights and obligations, and help you negotiate a fair settlement.

If you are considering a contested divorce, it is essential to understand the financial implications and seek expert advice to protect your best interests. With careful planning and expert support, it is possible to reach a fair and satisfactory settlement that meets the needs of both parties.

Child Custody in a Contested Divorce

One of the most significant concerns in a contested divorce is the custody of any children involved. The welfare of the children remains a top priority for the court, and several factors are considered when deciding on child custody.

Legal Framework for Determining Child Custody

In the UK, the Children Act 1989 outlines the legal framework for determining child custody in a contested divorce. The act stipulates that the best interests of the child must be the paramount consideration when making any decisions.

The court takes into account several factors when deciding on child custody, including:

• The child’s wishes and feelings (considered in light of their age and understanding)
• The child’s physical, emotional, and educational needs
• The likely effect on the child of any changes in their circumstances
• The child’s age, sex, background, and any other characteristics that the court considers relevant
• Any harm the child has suffered or may be at risk of suffering

Factors Considered by the Court

The court will take a holistic approach and consider several factors before deciding on child custody. The primary consideration will be the child’s welfare, and the court may take into account:

• The relationship between each parent and the child
• The child’s needs and routines, including education and medical care
• Each parent’s ability to provide care
• The child’s wishes and feelings (where appropriate)
• Any evidence of abuse or neglect

Challenges Faced by Parents

Parents may face several challenges when pursuing child custody in a contested divorce. It is important to note that the court system can be complex, and it is highly recommended to seek legal advice and support. Communication with your former partner can also be challenging, especially if there is a history of conflict or abuse.

It may also be challenging to prove that you are the best parent to provide care for your child. It is essential to present evidence that shows you can provide a stable, nurturing, and safe environment for your child.

Legal Costs and Who Pays for a Contested Divorce

In addition to the emotional toll of a contested divorce, there are also significant financial costs involved. Legal fees, court costs, and other expenses can quickly accumulate, leaving both parties with a hefty bill at the end of the proceedings.

The cost of a contested divorce varies depending on several factors, including the complexity of the case, the duration of proceedings, and the legal professionals involved. According to recent research, the average cost of a contested divorce in the UK is around £14,000, although it can be much higher in some cases. This figure does not include any additional costs that may arise, such as expert witness fees or appeals.

When it comes to paying for a contested divorce, there are several options available. In some cases, both parties may agree to split the costs equally. However, this is not always possible, especially if one party has significantly more financial resources than the other.

If the case goes to court, the judge will consider several factors when determining who should pay for the legal costs. These factors include the income and assets of each party, the conduct of the proceedings, and the reason for the divorce.

The Role of Legal Aid

In some cases, individuals may be eligible for legal aid to help cover the costs of a contested divorce. However, eligibility for legal aid is means-tested, meaning that only those who meet certain income and asset requirements will qualify.

Recent changes to legal aid laws in the UK have made it more difficult for individuals to access this form of financial assistance. As a result, many people find themselves facing significant legal costs without the support of legal aid.

Alternative Options for Funding

In addition to legal aid, there are other options available for individuals looking to fund a contested divorce. These include:

• Third-party litigation funding: This involves securing funding from a third party, such as a litigation funder or a charity. However, this option can be expensive and may involve sharing a portion of any settlement or award.
• Paying in instalments: Some legal professionals may offer the option to pay for their services in instalments, making the costs more manageable over time.
• Savings: If possible, individuals may choose to use their savings to fund a contested divorce. However, this option may not be feasible for everyone.

The Importance of Seeking Legal Advice

Regardless of how legal costs are funded, it is crucial to seek legal advice before embarking on a contested divorce. A solicitor can provide guidance on the likely costs involved, the best approach to take, and the chances of success. By taking this step, individuals can make informed decisions about their options and avoid unexpected financial surprises down the line.

Conclusion

Ending a marriage can be a difficult and emotional process, but understanding the legal grounds for a contested divorce in Britain is crucial. This comprehensive guide has explored the different legal grounds for a contested divorce, including adultery, unreasonable behaviour, desertion, and separation. We have also looked at the financial and child custody matters that arise during the divorce process and the legal costs involved.

In conclusion, a contested divorce can be a complex and challenging process, but having a clear understanding of the legal grounds and procedures involved can help individuals navigate the process more effectively. It is important to seek professional legal advice and support to ensure the best outcome for all parties involved, especially in matters of child custody and financial settlements.

Thank you for reading this comprehensive guide to the legal grounds for a contested divorce in Britain. We hope that it has provided you with valuable insight into this challenging and important area of British law.