Legal Question of The Week

I want to stop my divorce, can I? And what do I need to do?

• 10th Feb 2020
• Article written by Jack Staker
• Share:

The short answer is yes but be wary, for the stage the petition has reached in the divorce process will dictate the steps to be taken to effect a withdrawal.

Before service of the petition

Should the petitioner to a divorce wish to withdraw the petition before it has been served on the respondent, then he/she need only give written notice to the court where they filed it asking for it to be withdrawn (Family Procedure Rules 7.9).

After service of the petition with consent

However, should the petition have already been served on the respondent, the petitioner can still request its withdrawal but they will need the consent of the other party or the court’s consent to do so. If agreement to this course of action is reached with the respondent then the petitioner will need to file with the court an application notice alongside a consent order signed by both parties requesting the petition be dismissed (FPR 18). This action will occur a court fee.

No consent to the withdrawal

If the respondent does not consent to the withdrawal of the petition then the petitioner will have to apply to the court on notice setting out the order being sought and explaining the reasons why. Again this will trigger the payment of a fee to the court.

The withdrawal of the petition dismisses the proceedings which, in effect, treats them as though they never existed.

There are a few points to bear in mind.

• The £550 fee paid by the petitioner to issue the petition will be lost as this is a non-refundable payment.
• Should the petitioner wish to continue with the petition after a brief period of reconciliation, the fact being used to prove the ground for divorce may affect whether the petition can be continued. For example, if the petition is based on the respondent’s adultery, any period of cohabitation exceeding 6 months since the petitioner became aware of the respondent’s last adulterous act will mean that the petitioner will no longer be able to rely upon this fact and will have to reissue the petition relying upon a different fact.
• Once the decree absolute is made the marriage will have legally dissolved. Should parties wish to stop the divorce it must be done before this time.

The court plays an active role in facilitating reconciliation attempts and the six week gap afforded between the pronouncement of the decree nisi and application for a decree absolute is to allow parties time to consider whether breaking their union is the right course of action.

Ultimately decisions to reconcile with an estranged spouse can be as hard as the decision to issue divorce proceedings in the first place. If you would like more information on this or advice regarding divorce and matrimonial matters more generally please feel free to contact one of the family law team.