A common question solicitors are asked at the beginning of a case is whether it is better to be the applicant or respondent in a divorce. In reality, there is very little between the two positions, and certainly since the introduction of no-fault divorce, this has reduced further. That said, there are some points worth considering and we look at these below.
Who does what in a divorce?
The applicant applies for the divorce and completes the form which starts everything off, which is then sent to the court alongside the original marriage/civil partnership certificate. The applicant is also responsible for paying the court fee. Twenty weeks after applying for the divorce, the applicant can apply for the conditional order. Following the granting of the conditional order and an additional six weeks and one day wait period, the applicant can apply for the final order.
The respondent is the party who doesn’t apply for divorce and must complete the Acknowledgement of Service form, returning it to the court within two weeks. Respondents can no longer dispute a divorce simply because they don’t want it to happen.
Divorcing couples can now apply jointly for divorce, and will be referred to Applicant 1 and Applicant 2. In this process, there are no respondents, although Applicant 1 is responsible for paying the court fee. It is up to the parties to informally agree whether Applicant 2 will make a contribution towards the fees.
A joint application can be changed into a sole application if there are any issues of non-engagement in the process by Applicant 2. This is likely to cause a slight delay to the process, so choosing the joint option should be considered carefully. Interestingly, take up for joint applications has been consistently much lower than those making sole applications.
Whoever makes the application, whether jointly or individually, each party is responsible for their own legal costs.
Does being the applicant in a divorce allow them more control of the proceedings?
If you are the applicant, then within the time parameters of the proceedings, you have control over applying for the conditional and final orders. The only matter for the respondent to attend to is the acknowledgement of service, and once they have done this, the applicant almost has complete control over the remaining stages.
Does who starts the divorce affect the outcome of financial proceedings?
While the applicant retains “control” of the divorce itself, this does not confer any more financial rights than the respondent. Whether you are an applicant or a respondent, it will not impact the outcome of the financial agreement.
A divorce does not deal with financial matters. In order to make a financial agreement legally binding, a consent order is required. This can only be sent to the court for approval once the conditional divorce order has been granted. If you are the applicant, you can delay the divorce process and force the other party to the negotiating table by delaying the application for the conditional order. This will have the effect of putting the divorce into stasis whilst finances are sorted out.
The respondent can also seek to delay the final order to allow the court time to consider the finances.
Are joint divorce applications riskier than being a sole applicant?
As stated above, when you decide to embark upon a joint application for divorce, you both become applicants and are therefore both in control of the process from beginning to end. In addition, both parties must agree to progress through each stage. If you are on good terms with your ex, a joint application could be the right decision.
On the other hand, if things between you are acrimonious, or become so, this could hinder progress of the divorce. It is also possible to transfer from a joint to an individual application, however, this is likely to cause a delay to the proceedings whilst the change is made. To become a sole applicant in joint proceedings, you should apply to the court at either the conditional or final order application stage.
There are some instances where a joint application will not be appropriate. For example, if there has been a history of domestic abuse or coercive control. The joint application process is more complex than sole divorce applications because it requires collaboration and coordination throughout, which requires prolonged communication with your ex.
Do I have to have grounds for divorce?
There is only one ground for divorce which is that the marriage has irretrievably broken down. The applicant must therefore confirm that the marriage has completely broken down before they can continue with the divorce. No blame has to be assigned to the respondent and so no evidence is required to demonstrate the reasons the marriage has ended. All the applicant has to do is tick the relevant box confirming that it has.
Can the respondent defend the divorce?
Because no blame is assigned or evidence required that the marriage has broken down irretrievably, it means the respondent is not able to defend the divorce. The only way to contest a divorce is to dispute it on technical grounds. Divorce applications can only be disputed on the basis of:
- Jurisdiction.
- The validity of the marriage/civil partnership.
- The marriage/civil partnership has already been legally ended. For example, a Talaq has been granted in a Sharia recognised jurisdiction.
Can the respondent apply for the final order?
The respondent can apply for the final order, providing the conditional order has been granted, three months after the expiry of the 6-week waiting period if the sole applicant fails to apply. This can complicate the process and will require an application being made to court and potentially a hearing where the judge will decide whether or not it is appropriate to grant the final order.
Once the final order is granted, you will be legally divorced, which can have implications on your finances, particularly if you get married before they have been finalised. Therefore, the court will look into the issue extremely carefully before making a decision.
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