It is quite common for someone whose marriage has broken down to want to issue divorce proceedings before their spouse, but is there any advantage in ‘getting in first’?
Perhaps the most common reason for wanting to be the first to issue divorce proceedings is the desire to blame the other party for the breakdown of the marriage. If you get in first with your petition alleging that your spouse has committed adultery or that they have behaved unreasonably, then that firmly places the blame on them, and also gives you an advantage when it comes to sorting out finances and arrangements for any children. Or does it?
In fact, subject to one point mentioned below, the courts are not interested in ‘the blame game’. Save in cases of exceptionally bad behaviour (as explained in this post), the court is not concerned with the reasons for the breakdown of the marriage. All that matters is that it has broken down. The reasons for the breakdown will generally have little or no bearing upon the financial settlement and the arrangements for children.
The only area where the courts are – unfortunately – interested in who has divorced who is the issue of costs. As a generalisation, the courts will order the party ‘at fault’ (if there is one, i.e. where the divorce is based upon adultery or unreasonable behaviour) to pay the costs of the divorce. However, the respondent to the divorce may try to avoid paying costs by defending the divorce and cross-petitioning, alleging that the breakdown of the marriage was the fault of the petitioner. This will, of course, make the divorce more complicated, and increase the costs.
Rather than getting bogged down in contested and expensive divorce proceedings that will not benefit either party, it is far better to try to agree in advance who will divorce who, on what basis, and who will pay the costs.
So, if you think that your spouse may be about to issue divorce proceedings, take some advice before rushing off to the court just so that you can get in first.
Image: Starting blocks, by Joakim Karlsson, licensed under CC BY 2.0.