Tue 15 Apr 2014

Help - Ive been served with an English divorce petition!

Even if you have been separated from your spouse for a number of years, it can still be very confusing and distressing to receive divorce papers through the door. I have found that clients usually have a number of questions in this situation, relating to the content of the divorce papers and what they need to do next. This article is intended to provide answers to those questions most commonly asked. This article relates only to divorce proceedings under English law. Divorce proceedings under Scots law are quite different – please contact our team in our Edinburgh or Glasgow offices if you have any queries relating to Scottish divorce.

1. I don’t agree with the allegations in the petition – what can I do?

If you consider that the allegations in the Petition are false, you can defend the Petition by filing an Answer. You could also raise your own competing Petition for divorce (a “cross-Petition”) if you have grounds to do so. This does not happen frequently, and you should carefully consider whether you wish to take these steps, having regard to costs.

Your spouse may agree to alter or remove the particular allegations which you object to. It is common for Petitions to be sent to the receiving spouse in draft form, before being lodged with the Court, for exactly that reason.

Alternatively, you could simply advise the Court that although you disagree with some or all of the allegations in the Petition, you do not wish to defend the action, which would allow the divorce to proceed.

2. Will the Court take these allegations into account when deciding financial matters?

The Court will not take any allegations about a spouse’s behaviour into account unless it is conduct which “would in the opinion of the Court be inequitable to disregard”. There are few circumstances in which this will happen.

The possible types of relevant conduct fall into roughly three categories:-

- Financial misconduct – e.g. if a spouse gambled away the family money

- Litigation misconduct – e.g. if a spouse was highly obstructive or dishonest in court proceedings.

- Other misconduct which would need to be extreme to be taken into account – examples from past cases are murder, sexual abuse of grandchildren or violent assault to the extent of disabling the spouse.

3. We haven’t sorted out the finances yet – does that mean the divorce has to stop?

Under English law, the procedures for divorce, financial matters, and any disputes relating to the children are all dealt with quite separately. It is possible to get a divorce before reaching an agreement (or getting court orders) about financial matters.

However, there may be reasons to wait until you have a financial agreement before getting the final decree of divorce (decree absolute). For example, if one spouse were to die before a financial agreement were reached, being divorced will affect the surviving spouse’s entitlement to receive death benefits from the pension.

The situation is quite different under Scots law, where the Court must generally be satisfied that matters relating to finances and the parties’ children are resolved before it will grant decree of divorce.

4. The divorce petition is from an English Court, but I think we should divorce elsewhere – what can I do?

If this is the case, consult a specialist family lawyer immediately – preferably someone who has knowledge of the laws of both countries, or of international family cases in general.

In some circumstances, you will not be able to transfer the divorce proceedings from the English courts to the country of your choice. In other circumstances, you may be able to do so. It is vital to take advice and any necessary steps as soon as possible.

5. The petition says I have to respond within 7 days – what happens if I’m late?

That 7 day limit might not actually be correct – that applies if the petition has been served within England. If you live elsewhere (such as Scotland), the time limit is actually 21 days. In my experience, this isn’t usually clear from the documentation sent by the Court.

The reason for sending back the Acknowledgement of Service is that the Petitioner will need to prove that you have received the petition before he/she can take any further steps in the divorce. If the Acknowledgement of Service is not returned, this can be done by arranging for the petition to be re-delivered to you personally. Alternatively, he/she can seek a court order dispensing with the need to prove the petition was received. So if you don’t return it quite on time, it may mean a slight delay before the divorce can proceed to decree nisi stage. I would recommend that you see a solicitor as soon as possible, and before returning the Acknowledgement, to consider what steps you should take.

6. My spouse seems to be asking for every possible type of financial provision in the petition – surely that can’t be right!

Please don’t worry about this! It is standard procedure to tick all of the boxes for financial provision on the last page of the petition, to leave options open. This does not mean that your spouse is looking for each (or perhaps any) of the types of financial order listed.

7. Do I have to pay my spouse’s legal fees?

The default position under English law is that the person receiving the divorce petition (“the Respondent”) pays the other spouse’s legal fees for the first part of the divorce process – i.e. raising the petition. It is possible to agree otherwise – for example, that the cost of this will be split equally between the spouses. If agreement can’t be reached, the Court will fix a hearing to determine whether the Respondent should pay. The costs for this part of the process include Court fees of £385, plus legal fees of between £500 and £700 plus VAT.

After the Petition, the default position is that each party pays for their own legal costs.

8. So how long will all this take?

If it is possible to get agreement regarding the finances quickly, the divorce process can take four to six months. If the financial circumstances are complex, or the parties cannot agree, or one spouse delays, the process may well take much longer.

The golden rule is that if you are served with court papers, take advice from someone suitably qualified to give it!

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