Can you oppose a divorce if there might be a reconciliation?
From time to time one party to a marriage does not accept the relationship has ended.
It was this scenario which occurred in a case before the court in Sydney, recently. The wife filed for divorce in December 2017. The husband opposed the divorce being granted on the basis that he wanted the parties to attend marriage counselling in an effort to reconcile.
The law provides that the only ground for establishing a divorce order is that the marriage has irretrievably broken down and this is established by 12 months separation. However, there is an exception if the court can be satisfied that there is a reasonable likelihood of cohabitation being resumed, in which case a divorce order shall not be made.
It was the husband’s contention that the court should not grant the divorce order on the basis that all the evidence supported a likelihood of a resumption of cohabitation.
The Judge referred to specific correspondence sent from the husband’s lawyers to the wife’s lawyers proposing that the parties attend marriage counselling which was pointedly refused and clearly stated that the wife has no interest in attending any counselling.
It was the decision of the Judge that the husband failed to establish any prospect of a resumption of cohabitation, therefore granting the Divorce Order as the wife sought and dismissing the husband’s response. Further, as the husband was wholly unsuccessful and caused significant delay and costs to be incurred by proceeding to a contested hearing, the wife was allowed to put information before the court as to her costs incurred for consideration of a cost order against the husband.
The lesson to be learnt – it is important to receive specialist family law advice on the legal test and onus of proof that the Judge needs to have regard to when deciding such a matter.
If you have personal circumstances you’d like to discuss with a family law expert, contact our office today. You can call us on (07) 3221 4300 for a fixed-fee no obligation appointment. We will be happy to assist you over the phone, in person or by Skype.