Understanding the main available divorce types and the legal processes is crucial.
It can have a big impact on your settlement, including if your selling a house during divorce.
The two main categories are mutual consent divorce and contested divorce.
This article explains these categories, how long they take, and the key differences.
Divorces and decisions
Each kind of divorce involves many different decisions.
Firstly, there is the issue of where each spouse lives during the divorce.
During this period, many worry that their spouse can sell the house, or even legally change the locks.
Ultimately, decisions around the property depend on a judge’s court order.
And of course, another major decision is which kind of divorce to choose…
What is a mutual consent divorce?
A mutual consent divorce is when both spouses agree on the terms involved, including:
- Division of assets (including property)
- Child custody
- Support arrangements
etc.
It occurs after each spouse works together to settle all divorce-related matters. The terms are then formalised in a divorce agreement.
Mutual consent divorcesoffer a quick, straightforward, and less adversarial separation. Especially compared to many other kinds of divorce.
How are mutual consent divorces initiated?
Divorce petition filed
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, England and Wales have ‘no-fault’ divorces. No blame for relationship breakdowns is put on either partner.)
Conditional Order obtained
The next step is to obtain a Conditional Order.
This confirms that there are no legal reasons your divorce cannot proceed. It’s granted after a 20-week cooling-off period.
Final Order granted
6 weeks after Conditional Orders are granted, applicants are eligible for Final Orders. These make the divorce official.
Solicitor’s fees for mutual divorces
Solicitors’ fees will increase the cost of a mutual consent divorce.
Spouses with few assets and no children often skip legal advice to save on costs.
Most couples going through mutual consent divorces have solicitors review proposed agreements.
This upfront investment can prevent problems from arising later. It reduces the chances of otherwise amicable divorces becoming contested.
Who should get a mutual consent divorce?
Mutual consent divorces work best with open, constructive communication. And a willingness to compromise.
They are typically for couples who:
- Want to end the marriage amicably
- Do what is fair for both sides
- Avoid an expensive legal battle
Negotiations can always break down, and couples may need to switch to a contested divorce. Solicitors can facilitate the process to reduce the likelihood of this.
What is a contested divorce?
A contested divorce is when one or both spouses disagree with the divorce or its terms.
The disagreement might be related to:
- Property division
- Spousal maintenance
- Child arrangements
- The divorce itself
Contested divorces require going through the courts to settle each point of dispute.
What is a contested divorce like?
Contested divorces can be stressful and expensive.
Many costs can add up, including:
- Court hearings
- Solicitors’ fees
- Expert testimony
- Prolonged negotiations
And more.
However, contesting the divorce may be necessary. It might protect your rights and ensure a fair outcome from the split.
How is a contested divorce filed?
Either spouse can file for divorce initially. The petitioner cites their reasons – for example, unreasonable behaviour, adultery, or desertion.
The other spouse can then contest:
- The grounds for divorce
- The proposed financial settlement
- Child custody arrangements
- Any other areas of dispute.
Both spouses seek legal advice from divorce solicitors when facing a contested divorce.
Experienced solicitors often take a more adversarial approach, fighting for their clients’ interests.
The benefits of solicitor involvement in divorce
Regardless of the type of divorce, both spouses should consult their solicitors.
They understand contested divorce proceedings and issues like financial settlements and child custody.
This ensures that each spouse understands their rights. It increases the chance of a fair and reasonable settlement.
Solicitors can also help draft the divorce agreement stating the agreed terms.
With solicitors involved, spouses are less likely to contest the divorce later on.
They are essential for contested divorces. In these situations, they argue your case before the court and negotiate on your behalf.
Mutual consent divorces vs. contested divorces
Here are some of the main differences between mutual consent and contested divorces:
Mutual Consent |
Contested Divorce |
|
Average Costs |
£5000 – £20,000 | £14,000 – £50,000 |
Timing |
6 months | 9 – 12 months |
Conflict Level |
Minimal | High conflict |
Negotiation |
Both spouses negotiate calmly and cooperate | Often involves solicitous battling it out in court proceedings |
Evidence |
Requires only essential paperwork | Requires gathering extensive evidence for disputed issues |
Court Hearings |
May need a short, final court hearing | Requires multiple court hearings to settle each dispute |
Children |
Parents agree on custody arrangements amicably | Custody decided through lengthy court evaluations |
Outcome |
Agreed Terms | Court-Imposed Resolutions |
Overall, mutual consent divorces are faster, simpler, and less adversarial.
However, contested divorces allow a spouse to fight for a specific outcome.
How long does each type of divorce take?
A mutual consent divorce takes at least six months. This time is from filing the petition to receiving the Final Order.
(New no-fault divorce rules in England and Wales state proceedings must take at least six months.)
A contested divorce often takes at least 9-12 months on average.
However, the precise length depends on the case’s complexity. And how willing the spouses are to negotiate and compromise.
They cannot be finalised until all areas of dispute have been resolved by the courts. This can sometimes take years.
What happens if my ex-partner does not answer?
Suppose your partner fails to respond to the divorce petition within the required time (usually 14 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. They must providing solid proof that your spouse was informed but did not respond.
However, personal service can cost £150-£250 plus VAT. The process server may also be unsuccessful if your spouse cannot be found.
Apply for deemed service
You need clear evidence that your spouse received the petition but did not 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
This is a last resort. It comes after you’ve made every reasonable effort to locate and serve your spouse.
It removes the obligation to serve your spouse. However, is hard to obtain without detailed evidence of all service attempts.
If permitted, you should seek a default judgment. This comes after the defined period for response has passed.
This allows the divorce to go forward uncontested based on your proposed terms. Your spouse loses the right to contest by not responding.
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