Family Law expert, Curtis Wray, explains what happens should a spouse change their mind during divorce proceedings.
At what point is it possible to halt divorce proceedings?
A spouse’s ability to halt divorce proceedings will depend upon their ‘party status’ within the respective divorce proceedings. In divorce proceedings, the spouse who issued the divorce petition is known as the petitioner and the spouse responding to the divorce petition is known as the respondent.
There are tactical advantages to being the petitioner within divorce proceedings; you will be able to control when applications are filed at court and you can also seek a costs order against the respondent which, if granted would require the respondent to pay the divorce costs. Often cost orders are granted by the courts if you are relying on one of the contentious facts, i.e. behaviour or adultery. Which party you are within the divorce proceedings can also impact upon your ability to halt the proceedings if you have had a change of heart for whatever reason. New legislation is due in the autumn of 2021 which will be changing the procedure for obtaining a divorce by removing the need to make allegations of behaviour or adultery.
If you are currently going through divorce proceedings and you wish to halt the proceedings, what you have to do will depend upon what stage the proceedings are at and whether you are the petitioner or the respondent.
If you are the petitioner and you have filed your divorce petition at court but it has not yet been served upon the respondent, you would have to write to the court promptly confirming that you wish to withdraw the divorce petition. You must then hope that you are in time and that the court will process your request to withdraw the proceedings before the respondent is served with the divorce petition. If the court action your request prior to the divorce petition being served upon the respondent, the divorce petition will not be served upon the respondent and the divorce proceedings will not be issued.
If you are the petitioner and you wish to halt the divorce proceedings but the respondent has already been served with the divorce petition, you can do either of the following:
- Seek that that your divorce petition be withdrawn and the divorce proceedings be dismissed; or
- Do nothing, (which has its risks).
With respect to the first option, you will need to contact the respondent to see if they agree to the petition being withdrawn and the proceedings being dismissed. If they agree to your request, you can then file an application at court with the respondent’s consent seeking that the proceedings be dismissed.
If the respondent is not agreeable to the divorce proceedings being dismissed, you would then have to file an application at court seeking that the divorce proceedings be dismissed. As the application would be filed on a contested basis, you would also be required to provide the respondent with a copy of your application. The court would then determine whether to grant your application and it is possible that they may list the application for a hearing so as to hear from both parties.
The other option is to simply do nothing, however, if the divorce proceedings are simply left as they are, it is likely to complicate matters further down the line if one spouse wishes to obtain a divorce. Accordingly, it is advisable to seek that the divorce proceedings be dismissed.
If you are the respondent within the proceedings, and the petitioner is agreeable to the divorce proceedings being dismissed, you can also seek to file an application at court seeking to dismiss the divorce proceedings as detailed above.
What happens if only one partner wants to stop the process, but the other still wants a divorce?
If the divorce proceedings are at a very early stage, it is currently possible for divorce proceedings to be defended by the respondent. As such, if the respondent does not wish to allow the divorce proceedings to go ahead, the respondent can attempt to defend the divorce proceedings.
At the outset, the respondent would have to confirm that they intend to defend the divorce proceedings when returning a document known as an acknowledgement of service to the court. This document is sent to the respondent together with the divorce petition upon the divorce proceedings being issued by the court. Following this, the respondent is then required to file an answer to the divorce petition; the answer is the respondent’s defence to the divorce petition. Once an answer has been filed, the divorce proceedings become defended. There are strict procedural rules that have to be followed and a strict timetable that must be adhered to in any defended divorce case.
If, however, the divorce proceedings are not defended and one of the spouses wishes to dismiss the proceedings, they will require the other spouse’s consent. If it is the petitioner that is wishing to dismiss the divorce proceedings, they can seek to obtain the court’s permission to withdraw their divorce petition, as detailed above, in absence of the respondent’s permission.
At what point do the divorce proceedings reach the 'point of no return'?
You can file an application seeking to dismiss the divorce proceedings at any point within the divorce proceedings up until a Decree Absolute has been pronounced by the court.
Upon the Decree Absolute being pronounced, the marriage is legally dissolved. It is extremely difficult to have a Decree Absolute set aside once it has been pronounced.
Can a fully finalised divorce ever be reversed by the court - and if so, under what circumstances?
Once a Decree Absolute has been pronounced by the court, unless there has been some procedural or other irregularity (which is also a basis upon which orders of the court can be appealed), it should not be set aside.
It is possible, however, for a Decree Absolute to be set aside if it has been fraudulently obtained or obtained through perjury, mistake or due to a non-disclosure.
If there has been a procedural irregularity in how the decree has been obtained, such as, the Family Procedure Rules being breached, or in light of the courts not actually having jurisdiction to deal with the matter, it is possible for the Decree Absolute to be rendered void.
My experience of proceedings being withdrawn
I have previously acted for clients where the parties reconciled but the divorce proceedings were left “on ice” and were not dismissed and I have also acted for clients where the proceedings were not dismissed and left on ice for a substantial period of time despite there being no reconciliation.
In the above circumstance, complications are likely to arise. Parties remain legally married until the Decree Absolute is pronounced. This can mean on death a spouse remains legally entitled to a share of a decreased spouse’ estate or pension, even in cases where the parties have been separated for a significant period. If at a later date either or both parties do wish to divorce, you are obliged to deal with those old previous proceedings first which can delay matters and increase legal costs. Due to the implications of divorce proceedings being left on ice I generally advise clients to seek to dismiss divorce proceedings if they are not going to be addressed, however, this advice does have to be assessed on a case by case basis.
For further advice on divorce or separation and other Family Law issues, please contact Curtis Wray or another member of our experienced Family Law Team for advice on your individual circumstances.
Girlings has offices in Ashford, Canterbury and Herne Bay.
