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Mutual Consent vs. Contested Divorce

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Mutual Consent vs. Contested Divorce
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Embarking on a divorce journey can be emotionally and mentally challenging for both parties. However, understanding the available divorce types and the subsequent legal processes is crucial. This knowledge empowers you to make informed decisions and navigate the path with confidence. 

The two main categories are mutual consent divorce and contested divorce. The article below explains what each involves, how long they take, and the key differences to be aware of. 

A mutual consent, uncontested or no-fault divorce offers a quicker, more straightforward, and less adversarial separation. It’s a path to consider if both spouses agree to the divorce and its terms. This type of divorce is often faster and simpler than a contested one, making it a beneficial option to explore. 

With a mutual consent divorce, the spouses work together independently or with solicitors to decide how to divide assets and debts, arrange child custody and support if applicable, and settle any other divorce-related matters. The terms are then formalised in a divorce agreement. 

One spouse will file a divorce petition with the court to start the divorce process. This involves citing irreconcilable differences as the reason for divorce. 

Since April 2022, ‘no-fault’ divorces have been accepted in England and Wales, with no requirement to place blame for the relationship breakdown on either partner. The next step is to obtain a Conditional Order. 

This confirms that there are no legal reasons your divorce cannot proceed and is granted after a 20-week cooling-off period. Six weeks after the Conditional Order is granted, applicants will become eligible for a Final Order, making the divorce official.  

Mutual consent divorces thrive on open, constructive communication and a willingness to compromise. They are for couples who want to end the marriage amicably, do what is fair for both sides and avoid an expensive legal battle. 

However, solicitors can facilitate negotiations if communications break down, but both sides still wish to avoid a contested divorce. 

The benefit of solicitor involvement in divorce

Regardless of the type of divorce, both spouses should consult their solicitors. This ensures that each spouse understands their rights and arrives at a fair and reasonable settlement. 

Solicitors can also help draft the divorce agreement, clearly stating the agreed terms. With solicitors involved, spouses are less likely to contest the divorce later if they feel the arrangement disadvantages them. This understanding of the process can empower you to make informed decisions about your divorce. 

Solicitor’s fees

However, solicitors’ fees will increase the cost of a mutual consent divorce. In more straightforward cases with limited assets and no children, spouses may forego legal advice to save on costs. 

However, most couples going through a mutual consent divorce find it beneficial to have a solicitor review the proposed agreement and ensure it adequately addresses all necessary issues. 

This upfront investment can prevent problems from arising later that lead to an otherwise amicable divorce turning contested. 

What is a contested divorce?

A contested divorce is when one or both spouses disagree with the divorce or its terms. Spouses may disagree over one or more issues like property division, spousal maintenance, child arrangements, or the divorce itself. Contested divorces require going through the courts to settle each point of dispute. 

How is a contested divorce filed?

Either spouse can file for divorce initially. The petitioner cites grounds like unreasonable behaviour, adultery, or desertion. The other spouse can then contest the grounds for divorce, the proposed financial settlement, child custody arrangements, or other areas of dispute. 

With a contested divorce, solicitors often take a more adversarial approach, fighting for their clients’ interests. 

What is a contested divorce like? 

Contested divorces can be emotionally draining, often leading to prolonged stress and anxiety. They involve more time, money, and emotional costs than mutual consent divorces. 

Court hearings, solicitors’ fees, expert testimony, prolonged negotiations, and other legal procedures can be financially burdensome. However, contesting the divorce may be necessary to protect your rights and ensure a fair outcome from the split. 

Navigating a contested divorce

It is even more critical for both spouses to seek legal advice from divorce solicitors when facing a contested divorce. With so many issues up for dispute, having an experienced solicitor arguing your case before the court and negotiating on your behalf is essential. 

They understand contested divorce proceedings and the law around factors like financial settlements and child custody. A skilled divorce solicitor can provide the guidance and support you need during this challenging time. 

How long does each type of divorce take?

A mutual consent divorce takes at least six months from filing the petition to receiving the Final Order. Under new no-fault divorce rules in England and Wales in 2022, divorce proceedings must take at least six months.  

A contested divorce often takes at least 9-12 months on average. However, high-conflict disputes with extensive litigation can drag on for years. The length depends on the case’s complexity and how willing the spouses are to negotiate and compromise. Contested divorces cannot be finalised until all areas of dispute have been resolved by the courts. 

Here are some of the main differences between mutual consent and contested divorces:

Overall, mutual consent divorces are faster, simpler, and less adversarial. However, contested divorces allow a spouse to fight for a specific outcome. 

What happens if my ex-partner does not answer?

Suppose your partner fails to respond to the divorce petition within the required time (usually fourteen days). In that case, you have several options to move the divorce forward:

  • Arrange for personal service of the petition by a process server. They can attempt to locate and serve your spouse with the papers directly, providing solid proof that your spouse was informed but did not respond. However, personal service can cost £150-£250 plus VAT. Plus, the process server may be unsuccessful if your spouse cannot be found. 
  • Apply for deemed service if you have clear evidence that your spouse received the petition but did not formally respond. For example, if you have text messages or emails acknowledging receipt. The court may then deem the petition properly served, allowing the divorce to proceed. The fee is currently £53 for deemed service. 
  • Request the court dispense with service requirements as a last resort if you’ve made every reasonable effort to locate and serve your spouse, but their whereabouts are unknown. This removes the obligation to serve them but is hard to obtain without thorough documentation of all service attempts. 

If permitted, you should seek a default judgment after the defined period for response has passed. This allows the divorce to go forward uncontested based on your initial proposed terms, as your spouse lost the right to contest by not responding.

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