As we have seen, one of the ways that you can show that a marriage has irretrievably broken down for the purpose of divorce proceedings is by proving that you and the other party (the ‘respondent’) have been separated for five years. There is no real defence to a five year separation divorce petition (unless the respondent can show that they have not been separated for five years). However, the respondent may oppose the divorce on the ground that the dissolution of the marriage will result in grave financial or other hardship to them, and that it would in all the circumstances be wrong to dissolve the marriage.
When a divorce is opposed on this basis the court must consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned. If it is then of the opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent, and that it would in all the circumstances be wrong to dissolve the marriage, it will dismiss the divorce petition.
The question, then, is: what constitutes ‘grave hardship’? Most of the reported cases relate to loss of benefit under the other party’s pension. However, such cases are less likely now that the court has power to deal with pensions on divorce. Another type of hardship is where the divorce causes the respondent to be regarded as a social outcast in their community, although this is very difficult to establish.
It is very unusual for a divorce to be refused on the grounds that it will cause grave hardship to the respondent. However, respondents to separation divorce cases who are worried about the financial effect of the divorce upon them can also ask the court to delay the divorce until it has considered their financial position as it will be after the divorce. This will be the subject of a subsequent post here.
If you want to oppose a five year separation divorce on the grounds of grave hardship then you should seek expert legal advice. Family Law Café can help you find this. To contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.