Divorce is not uncommon, and it is no secret that the process can be long-drawn, exhausting and expensive for the parties involved. However, it doesn’t always have to be that way.
Contested divorce is one where at least one issue of the divorce still needs to be resolved. As part of the proceedings, the husband and wife will have to attend trial and provide evidence to support their cases on how that issue(s) should be resolved.
Simplified uncontested divorce is one where the couple has agreed on all issues of their divorce between themselves before starting divorce proceedings.
If the couple is unable to agree on all the issues to their divorce before filing the divorce papers, they cannot proceed with a simplified uncontested divorce. Instead, they will have to file for a contested divorce.
That said, the couple may still continue to negotiate between themselves and come to an agreement on the contested issues. If this happens, these issues will become uncontested and need not be heard in court.
Issues to a divorce can include the reason for divorce, division of assets, custody of children, and maintenance.
Why Should You Not Contest Your Divorce?
It has been reported that 6.5 out of 10 divorce cases last year were resolved through mediation instead of having to go through contested hearings.
Going to court to contest your divorce would mean that third-parties will get involved in issues stemming from your divorce, and that you would essentially be giving up control over the proceedings to these third-parties.
These third-parties would include parties such as mediators, lawyers and judges. These parties are outsiders to your marriage who may view the issues relating to the divorce differently, since they are not intimate with the matters of your life and marriage.
In giving up control over the proceedings to these third-parties in contested divorce proceedings, you would have less say in the terms of your own divorce. This could potentially lead to you “abusing your rights” instead of enforcing them.
In other words, although you are entitled to legal rights under the law, the enforcement of these rights in a contested divorce could come at the cost of spending time and money in court hearings and giving up control over the proceedings.
As a result, you may unintentionally “abuse” your rights because you end up giving up more than what you get out of the contested divorce proceedings.
In comparison, by taking the time to talk to your spouse and attempt to come to a compromise on the terms of the divorce, there may be a higher chance of you being able to enforce your own rights and getting what you want.
When there is compromise, both spouses would be able to get what they want in whatever manner they are able to agree on, without having to abide by strict legal rights as they have been given under the law.
For example, if you and your spouse can agree on child access arrangements, a mutual agreement between the two of you could be a more flexible arrangement than, say, a court order for specific, limited visiting days and hours.
Therefore if you have an idea of the arrangements you would like to obtain for yourself, and which issues to the divorce you feel less strongly about, you and your spouse can work together to come to an agreement on the terms of the divorce that both parties will be satisfied with – on your own, without intervention by persons not party to your marriage.
The overall duration of the proceedings for a simplified uncontested divorce is significantly shorter than that of contested divorce proceedings.
For example, let’s say that a couple cannot agree on the terms of their divorce themselves and file for contested divorce to have the issues to their divorce resolved in court. From experience, it will take them an average of 8 months to obtain the interim judgment and ancillaries for their contested divorce.
In comparison, another couple could sit down to discuss and agree on all the terms of their divorce by themselves, or with the help of counsellors and mediators. Once they have done so, they could then file for simplified uncontested divorce, which would result in the proceedings getting wrapped up in 3 – 4 months.
In a simplified uncontested divorce, the couple would have already mutually agreed on the terms of their divorce before the commencement of divorce proceedings. This makes such divorce proceedings much quicker, which also means that your divorce can be concluded faster as well.
In contested divorce proceedings on the other hand, there is the possibility of adversarial proceedings (the filing of a counterclaim by one of the spouses when an issue is disagreed upon) occurring. This would lead to more issues relating to the divorce being contested and having to be resolved before the divorce can be finalised. As a result, legal proceedings may drag on for longer.
The duration of hearings for contested divorce proceedings is subject to the number of issues raised and how long each issue takes to be resolved.
This means that proceedings can be prolonged and take much longer to conclude than proceedings for simplified uncontested divorces, where the hearings can be as short as 10 minutes.
As contested divorce proceedings deal with more issues than simplified uncontested divorces, more hearings may be needed to resolve all these issues.
These hearings may also be spaced out over some time, as when they can be held depends on the schedules of the court and the couple’s lawyers. The contested divorce may also take longer to finalise as a result.
While money can be used to hire a lawyer, money cannot be used to buy back time lost. This applies not just to you, as one of the divorcing parties, but also the court. This is because the court can invest the time saved on hearing – and deciding on – your contested divorce in resolving disputes for other parties instead.
Not only is the duration for simplified uncontested divorce proceedings shorter than that of contested divorce proceedings, simplified uncontested divorces are likely to be cheaper as well.
For contested divorce proceedings, each spouse will need to hire and hence pay for their own lawyer. The court also charges fees for the hearing of cases, where more fees are incurred as the case drags on.
In a simplified uncontested divorce the other hand, both spouses can be represented by the same lawyer for the filing of the Draft Consent Order. As a result, they do not need to incur legal fees for the hiring of a second lawyer to represent them in their divorce.
For a more detailed breakdown of the fees required for the different types of divorce proceedings, you can refer to our divorce fee guide.
While divorce proceedings mainly revolve around the couple and the issues to the divorce, they are not the only two people affected as a result of the divorce.
Your children will likely be affected by it as well, especially those who are young and may not understand what is happening. This lack of understanding may cause stress to your children, and in more drastic cases, emotional trauma.
Divorce has been proven to affect children negatively . Subjecting them to litigation that would be foreign and intimidating to them for extended periods of time could amplify any stress and emotional trauma that they are already going through.
If one of the issues that you and your spouse cannot agree on is the custody, care and control of your children, the court may take what the children prefer into consideration if they are old enough to express an opinion on this. Being put on the spot for their opinion could cause them additional stress as well.
If you and your spouse can discuss the issues of your divorce and come to an amicable resolution by yourselves, this may lessen the amount of stress your children may go through as a result of the divorce proceedings.
Lengthy legal proceedings are physically and mentally taxing on everyone involved. It is to your benefit, as well as your children’s, that the divorce proceedings take as little time as possible.
A Registrar of the Family Justice Courts has also mentioned that both spouses and children would benefit from “sensitive and expedited proceedings” in court, as this would enable them to move on with their lives more quickly.
While there are benefits to not contesting a divorce or filing for simplified uncontested divorce, it is, of course, crucial to remember that whether you should take such steps will depend on you and your spouse being able to agree on issues surrounding the divorce in a fair and amicable manner in the first place.
If there is a chance that your spouse might take advantage of you when coming up with the terms of the divorce with you, or if there was any degree of physical or emotional abuse in the relationship, then it may be better for you to seek the help of a lawyer and go through contested divorce proceedings instead. Given that divorce is something very personal, your lawyer would be less emotionally invested in proceedings and hence able to advise you on your options from a more rational point of view.
It is also important to note that there is a big difference between knowing your legal rights and whether or not you can actually achieve them. After all, family law is not about the assertion of the absolute rights of individuals, but instead about balancing the rights of both spouses, and what is in the best interests of any children they have, so that there is a fair outcome for all sides.
Should you be unsure about whether to contest your divorce, feel free to contact me for a consultation on what may be the best way forward for you.
Mohamed Baiross is a partner in I.R.B. Law LLP who runs a debt recovery practice amongst others. Please feel free to WhatsApp him to discuss. He mostly gives free consultations subject to availability.
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