All divorces will ultimately end up in court. The only question is what happens when they get there. This essentially depends on how much the couples can resolve themselves.
If you and your spouse are on good terms, things will ultimately turn out to be smooth, but if you both resent each other, there are so many things you need to keep in mind if your divorce ends up in court.
Here is a quick guide to what you need to know.
Divorces can have between one and three elements
In general, when non-lawyers use the term “divorce,” they typically refer to the entire divorce process. Legally, however, “divorce” is simply the act of ending a marriage.
These issues are raised as a consequence of divorcing. They are usually dealt with at around the same time but are considered to be separate.
This means that the nature, length and cost of divorce cases depend on three main factors. These are:
How much the couple has managed to agree on themselves
How difficult it is to divide their assets fairly
Whether or not they have children
The divorce itself
In the UK, at present, there is no “no-faults divorce” option. You can only be granted a divorce if you can show that your marriage has broken down irretrievably. There are five ways this can be demonstrated. These are:
5 years separation when the other party did not consent
2 years separation with consent
Of these, “unreasonable behavior” is the vaguest. This can make it a convenient option for couples who agree to divorce and would like to do so quickly.
For example, one partner could cite the other’s long working hours as an example of unreasonable behavior because they are left alone so much.
If the other partner does not contest the divorce, then there is a good chance a judge will sign off on it.
The challenge comes when one party wants to divorce, and the other does not. In this, the party who wants to divorce has two options.
The first is to separate from their partner and wait five years. After this, they can get a divorce regardless of whether or not their partner consents.
The other is to go ahead and file a divorce case and attempt to prove one of the other remaining grounds for divorce.
In practice, this is highly unlikely to be desertion. That leaves adultery and unreasonable behavior.
If you can prove that your partner committed adultery, then, under normal circumstances, you can expect to be granted a divorce.
There is, however, a potential twist to this. If your partner can demonstrate that you knew about the adultery and forgave them but changed your mind, then you might not be granted a divorce.
Watch this video to know more things you should know before filing a divorce:
Unreasonable behavior in contested divorces
Assuming your partner was faithful to you, this leaves unreasonable behavior. In the case of a contested divorce, you can expect the standard of proof here to be much higher than for an uncontested one.
For example, you can expect to demonstrate that your partner’s behavior is objectively unreasonable rather than just something you find irritating.
You can also expect to be asked to demonstrate how your partner’s behavior negatively impacts you.
Again, you’re probably going to need to go further than just finding it irritating. You’re also going to need to be consistent.
For example, if you’re complaining about your partner spending long hours at work, you can’t be seen to be reaping the benefits of the extra money this brings in.
Trials apply in criminal cases, and they result in a verdict of guilty or innocent. Divorce cases are civil matters (from a legal perspective, at least). That means you attend a hearing, after which the judge will make a ruling.
There is no “accused,” just a plaintiff and a defendant. There is also no jury or even a public gallery. All family court hearings are conducted in private.
You will almost certainly have to present evidence, and you may need/want to call witnesses. You can, however, forget about anything you’ve seen in legal dramas.
These tend to be highly fictionalized anyway. In particular, forget any ideas about lawyers tearing someone to pieces on the stand.
Firstly, no competent lawyer would do that. Secondly, no competent judge would allow it.
It is fair to say that the nature of divorce cases means that they can get very heated. If this happens, then, usually, the party’s lawyer will be the first person to step in.
They will do their best to calm the situation. If they are unable to do so, then the judge will step in.
Depending on the situation, they may order a break, so the person has time to calm down. They may, however, find the person in contempt of court.
Therefore, the key point to take away is that you must do your best to stay calm. Whatever you do, keep your temper.
A judge may be sympathetic to your situation, but they will insist on reasonable standards in the courtroom.
Even taking breaks will delay your case (and delay other people waiting to have their cases heard). You want to avoid being found in contempt of court.
The practicalities of going to court
In the real world, your first and arguably most significant challenge is just getting a hearing date. Depending on where you live, you can find yourself with a long wait even at the best of times.
Right now, courts are still dealing with the impact of COVID19. Waiting times can therefore be much longer than usual.
Once you get your court date, you want to do your best to make the hearing go smoothly. That starts by turning up to the right place at the right time, ready to go.
Make sure you know where you are supposed to be and when you are supposed to be there. Then check how you are going to get there.
You will be expected to dress smartly. It’s advisable to bring comfortable shoes as you may be on your feet a lot. It can also be a good idea to bring water and some snacks.
You are unlikely to be able to eat in the courtroom, but you can snack outside. You will get a meal break if necessary, and you can expect there to be places nearby to buy food, but you can bring your own.
If you feel disconnected or frustrated about the state of your marriage but want to avoid separation and/or divorce, the marriage.com course meant for married couples is an excellent resource to help you overcome the most challenging aspects of being married.
Kerry Smith is the Head of Family Law at K J Smith Solicitors. K J Smith Solicitors are experienced family solicitors in the Thames Valley area specialising in family mediation, estate planning and divorce and separation.