As many famous singers have lamented, “breaking up is hard to do”. On top of the emotional stress and prospect of legal proceedings, while the outcome, except in the rarest of situations1 will be bringing the marriage or civil partnership to a legal end, does who divorces whom make a difference?
When considering the pros and cons, generally speaking, there are more pros to being the Petitioner than there are cons.
- The Petitioner is usually more in control of the speed of the proceedings. This ties in with point 4 below.
- If adultery or behaviour is the fact to be relied upon, the Petitioner will usually seek his or her costs of an undefended divorce being paid for by the Respondent.
- If the Petitioner also requires financial remedy, being in control of when to get the Absolute can offer some protection in the event of an untimely death of the Respondent before finances have been sorted out.
- If the Petitioner needs interim maintenance, it could be back-dated to the date when the petition is presented.
- While some may see this as a pro, the con is the psychologically damning impact a hastily drawn fault-based petition can have on the Respondent. It could negatively affect the manner in which all that follows is handled.
- A Respondent who objects to being divorced, even if he or she wants it themselves, could make it difficult for the Petitioner to get what they both want by:
a. Failing to return the Acknowledgement of Service in a timely fashion or at all.
b. Filing an answer and cross-petition.
c. Defending the petition (although rare in practice).
all of which increase the costs for both parties, lengthen the proceedings and the potential for discord.
If you are the Petitioner, is there a way to divorce “nicely”?
One obvious way is to agree to divorce after 2 years’ separation with your spouse’s consent. But if one or both of you want to divorce sooner rather than later, then one of you will have to allege fault – the act of adultery (by the respondent – the petitioner cannot petition relying upon their own adultery) or behaviour and its impact on the other spouse. With help from a specialist family solicitor the allegations should be carefully drafted to say enough but not too much, to prove entitlement to a divorce as prescribed by the relevant legislation2.
Most solicitors who specialise in this work3 will suggest the particulars of the alleged behaviour or adultery are put to the Respondent before the petition is issued. That way, the intended Respondent has a chance, with his or her lawyer, to consider the impact of the allegation and whether or not the allegations can or should be reduced in severity.
Whilst a Petitioner may feel entitled to have their divorce petition costs paid if alleging a fault-based divorce, if both parties conclude the marriage is at an end and who petitions whom is more like tossing a coin, then the better way to handle the question of costs is to agree that those costs are shared. The Court fee is £550 – shared equally it is £225 each. Many solicitors offer fixed fees for uncontested divorce proceedings; invariably, the Petitioner’s costs will be higher than the Respondent’s. If solicitors are used, the fees for the divorce aspects could be added together and divided by two, so each ends up paying half of the total solicitor costs. Or, there is simply agreement that the parties can meet their respective lawyers’ bills out of a joint fund.
Until the current divorce legislation is reformed, we are stuck with fault-based divorce for those wanting to divorce quickly. To reduce the pain of divorce for both parties, agreeing to divorce nicely, who divorces whom and the allegations to be made in the petition is a good place to start and helps to redress the perceived advantage gained by being the Petitioner.
If you would like legal advice concerning your circumstances please speak to a member of our Family team. This article it is intended to provide information of general interest about current legal issues.
 Owens v Owens  UKSC 41
 Matrimonial Causes Act 1973, s1 (2) (a) and (b)
 Resolution, First for Family Law – www.resolution.org.uk