Dealing with common divorce problems
There can be situations where the normal divorce procedures cannot be followed, or additional steps must be taken due to the circumstances which arise. These include the following:
Amending an Error in the Divorce Petition.
If an error or omission is discovered in a Petition, such as where a particular financial remedy was not sought, or the parties domicile was stated incorrectly, then the Petition must be amended.
If directions for trial have not yet been made then the Petitioner can amend the Petition without the leave of the Court. However, if directions have been given, or if the Respondent has filed an answer to the original Petition, then leave of the Court will be required before any amendment will be allowed.
Once amended, the Petition will have to be reserved on the Respondent.
Very minor amendments, such as an incorrect date of birth of a child or an incorrect occupation of one of the parties, can be amended by referring to it in the Petitioners affidavit in support. The District Judge will then usually give leave for the Petition to stand as corrected and dispense with the need for re-service.
Alternative Methods of Service
If normal postal service by the Court is unsuccessful or inappropriate in the circumstances, there are other methods of service which can be used. These include:-
a) Personal Service by a Court Bailiff or Process Server – This is where the Petitioner has requested either the Court Bailiff, or a private Process Server to track down the Respondent and personally serve him with the papers. If the Respondent returns the acknowledgement of service, then this will be proof of service, but if not the Bailiff or Process Server will provide a certificate/affidavit confirming that the Respondent received the papers. It should be noted that the Petitioner cannot serve the documents themselves.
b) Deemed Service – Where the Respondent does not file the Acknowledgement of Service, the Petitioner can apply to the Court for the Petition to be deemed served. They will need to satisfy the Court that the Respondent did in fact receive the documentation. This will be in the form of an affidavit stating why the Petitioner believes the Respondent has the papers and attaching any evidence of such.
c) Substituted Service – Where the Petitioner’s efforts to serve the papers on the Respondent have failed or there is insufficient evidence to show that the Respondent has received the paperwork, then the Petitioner should apply to the Court requesting an alternative method of service. This application must also be supported by an affidavit setting out why there is a need for substituted service. The Court, if satisfied, will then provide for an alternative method, such as by advertisement in a local paper which he is known to read, or to serve a relative whom the Respondent is known to be in contact with.
d) Dispensing with Service – This is the last resort where all other methods of service have failed. The Court will grant this where they are of the opinion that it is impractical to serve the Petition, or for other reasons it is necessary to dispense with service. This is an extreme measure, as it means that the Respondent can find out later that he is divorced without his knowledge and without having a chance to defend his case should he wish. Any application to dispense with service must be accompanied with an affidavit setting out what the problem is with service and what lengths the Petitioner has gone to in trying to serve the papers on the Respondent. Every effort will need to be shown to have been made.
Applying for Decree Absolute Out of Time
If the Petitioner does not apply for Decree Absolute for more than 12 months after the Decree Nisi is granted, then their application must be accompanied by a written explanation as to why there was a delay. The purpose of this is to ensure that there has not been an attempted reconciliation between the parties which may have prejudiced the grounds of the divorce, or that there are no additional children who have since been born that must now be considered before the Decree Absolute is granted.
The Respondent’s Application For Decree Absolute
Whilst usually it is the Petitioner who applies for the Decree Absolute, in some circumstances they may wish to wait before doing so. In such situations the Respondent has the ability to apply for the Decree Absolute after four and a half moths have passed from the Decree Nisi (3 months from the time the Petitioner would have been able to apply). In this case the Petitioner must be served with Notice of the Application. This allows them to make any objections they may have known to the Court, who will them decide based on both parties representations whether to grant the Decree Absolute or delay until further enquiries have been made.
Defended Divorce Petitions
If the Respondent intends to defend the divorce they will have to return the Acknowledgement of Service within 7 days of service of the Petition to give notice to the Petitioner that they intend to defend the case. An ‘Answer’ will then need to be filed within 28 days of service of the Petition setting out their reasons for defending the matter. Should the Respondent not file the notice of intent, they can still file the answer. However if they file the notice, they are not obligated to file the answer.
If the case is considered complex, difficult or grave, then the District Judge is likely to transfer the case to the High Court, otherwise directions for trial will be given which will eventually lead to a hearing in open court.
This guide provided by Shmuel Portnoy of Darlingtons Solicitors, who offer a full range of divorce and family law advice.
