Common reasons for returned applications

Common reasons for returned applications

Below are the common reasons for returned applications when parties try and draft their own divorce petitions

6 out of 10 divorce petitions contain errors and are returned by courts.

The Ministry of Justice report states that in general, cases where both parties or just the respondent had legal representation, took longer than cases where both parties or just the applicant had no legal adviser.

Top 10 reasons for divorce papers being returned:

  1. No fee enclosed
  2. Details of marriage incorrect
    – Names do not match marriage certificate
    – Place of marriage
    – Date of marriage
  3. Jurisdiction page incomplete and incorrect
  4. Other proceedings or arrangements incomplete
  5. The facts
    – Grounds at part 5 do not match statement of case at part 6
    – Two grounds selected
  6. Statement of case, insufficient detail or incomplete
  7. The marriage certificate with the petition
    – No original certificate enclosed
    – No translation of certificate
    – Only a photocopy of certificate enclosed
  8. No certificate of reconciliation received from the solicitor
  9. No fee remission contribution received
  10. Service details
    – Not complete
    – No address for service for all parties

HMCTS

New Divorce Petition

1. When Can a Divorce Petition be Issued?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]You cannot issue a divorce petition unless you have been married for one year or more.  Although it does not matter where your marriage took place it does matter where you and/or your spouse are living at the time the petition’s  issued.[/bg_collapse]

 2. Will my Marriage Certificate be Required?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ] Yes. Accompanying your divorce petition you must have either an original or an official copy of your marriage certificate. A photocopy is not acceptable. If your marriage took place in England or Wales, you can obtain an official copy of your marriage certificate. This is from the office of the Registrar of Births, Deaths, and Marriages for the district in which your marriage took place. The court does not return your marriage certificate at the conclusion of the divorce. Different formalities apply where you have married abroad. These matters, known as domicile and residence, can be complex. [/bg_collapse]

3. On What Ground can a Divorce Petition be Issued?

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The only ground for divorce is that the marriage has irretrievably broken down. To prove this you need to establish the existence of one of five factual circumstances. These are:-

  • One of you have committed adultery and the other finds it intolerable to continue to live with him/her.
  • Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living with him/her.
  • Desertion by one party for a continuous period of two years or more.
  • You have been living apart from your spouse for two years or more and your spouse agrees to the divorce.
  • You have been living apart from your spouse for five years or more, whether or not your spouse agrees to the divorce.
  • It is no longer compulsory in a petition based on adultery to name the third person concerned.

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4. Does the Basis of the Divorce Have to be Agreed?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]No. However, it might be a good idea for you or your solicitor to establish whether or not there is likely to be any opposition to the petition before it is actually issued at court. As a matter of good practice, a draft of a petition based on behaviour should usually go to the other spouse concerned so that they can reach an agreement over the particulars cited.[/bg_collapse]

5. What Information Does the Divorce Petition Contain?

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The petition is a standard court form that contains basic information. Names and addresses of the couple concerned, details of any children and a statement that the marriage has irretrievably broken down. It will also state the basis of the petition, such as adultery or behaviour. The contents of the petition must be true.

The petition concludes with a section known as the ‘prayer’ which sets out what is actually being sought. It, includes a request to dissolve the marriage and may also include a request for the other spouse to pay some, or all, of the costs of the divorce. In addition, a request is usually made for an order for financial provision (known as ‘ancillary relief’).

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6. Will I Need to Attend Court?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ] You will usually only need to attend a hearing if you spouse contests the divorce. You may have to attend court if you or your spouse are unable to agree on arrangements for your children or for financial provision .[/bg_collapse]

7. Are The Divorce Proceedings Held in Public?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]Court proceedings in family law are usually held in private. The press are able to publish the pronouncement of the date of decree nisi. The information that they may disclose is, however, limited to the names of the couple and the basis upon which the divorce was granted but, in the case of adultery or behaviour, not the actual details themselves.[/bg_collapse]

8. When are Financial Issues Dealt With?

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Negotiations in relation to financial arrangements for the future can take place at any time before, during or after the divorce.  However, in most cases, we advise our clients to reach a financial settlement at an early stage. Ultimately to prevent the divorce proceedings becoming delayed.  The Court can approve a financial settlement on Decree Nisi. This occurs approximately midway through the divorce.

It will remain open to your ex-spouse to make financial claims against you, even after the divorce, if a clean break Order is not lodged at Court .  We specialise in negotiating successful financial settlements for our clients.  We also specialise in the drafting of Consent Orders.  No financial settlement is binding or enforceable unless incorporated into a Consent Order and approved by the Court.

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9. When Will I be Able to Remarry?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]Neither party to the marriage is free to remarry until the final decree of divorce has been approved (known as the ‘decree absolute’).[/bg_collapse]

10. Timetable

10.1 Issue of the Petition

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The spouse who starts the divorce is the ‘Petitioner’. The other spouse is the ‘Respondent’. If a third person is named in a petition based on adultery, that person is the ‘Co-Respondent’. The divorce starts when court receives the following papers:-

  • Divorce petition.
  • Statement as to advice given on reconciliation.
  • Marriage certificate.
  • Court fee (unless the Petitioner is exempt from paying such fees).

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10.2 What Happens Next?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]The court or the Petitioner’s solicitor sends by post a copy of the petition  to the Respondent, together with a form of acknowledgment for him/her to complete (known as the ‘acknowledgment of service’). A copy of the petition  is also sent to any Co-Respondent. If the Respondent/Co-Respondent have solicitors who represent them then the divorce papers are usually sent directly to them.[/bg_collapse]

10.3 What Must the Respondent do Once He/She Receives the Divorce Papers?

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The Respondent must complete and return to the court the acknowledgment of service within eight days of receipt of the divorce papers. The form asks the Respondent whether he/she:-

  • Agrees with the basis of the court’s jurisdiction.
  • Intends to defend the petition.
  • Objects to paying any costs claimed.

The eight day time period starts on the day after the Respondent receives the divorce papers. Longer time limits apply where the Respondent lives outside England and Wales.

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10.4. What Happens if the Respondent Wishes to Defend the Divorce?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]The Respondent must file a defense (known as an ‘Answer’) within 28 days of receipt of the divorce papers (longer time limits apply where the Respondent lives outside England and Wales). The petition then becomes defended and the remaining procedure outlined below no longer applies. However, it is still possible to reach a compromise over how the divorce is to proceed even if you have lodged your answer. Defended divorce proceedings rarely result in a contested hearing and will take longer to finalise the divorce .[/bg_collapse]

10.5. What Happens Where the Respondent Agrees That the Court Has Jurisdiction and Does Not Wish to Defend the Divorce?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]The court will send a copy of the Respondent’s acknowledgment of service to the Petitioner’s solicitor who then prepares an affidavit (a sworn statement) which confirms that the contents of the petition are true. The affidavit must be sworn by the Petitioner before an independent solicitor or court official. This is then sent to the court with a request for a date for pronouncement of the provisional decree of divorce (known as the ‘decree nisi’).[/bg_collapse]

10.6. What Happens if No Acknowledgement of Service is Returned to the Court Within the Time Limit?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]The Petitioner will need to prove that the Respondent and any named Co-Respondent have received the divorce papers. This may require a duplicate set of the papers sent to the Respondent by recorded delivery or arranging for someone to deliver the papers to the Respondent personally. In exceptional circumstances, where every attempt to ensure that the Respondent has received the divorce papers is unsuccessful, the court may make an order dispensing with the need to effect service.[/bg_collapse]

10.7. How Does the Court Deal With the Petitioner’s Application For a Date For Pronouncement of the Decree Nisi?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]The judge will review the divorce petition and will grant a decree of divorce or reject it. If so, the judge certifies the date for the decree nisi and the Petitioner and the Respondent, (usually through their solicitors), are then informed by the court of the date on which the decree nisi will be. This is usually a couple of weeks after the judge issues his certificate. The couple does not need to attend court for the pronouncement.[/bg_collapse]

10.8. When Can the Petitioner Apply for the Decree Absolute?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]Provided that the courtis satisfied with the arrangements made for any children (or if not satisfied, where the court has not restricted the decree absolute application), the Petitioner can apply for the decree absolute six weeks and one day after the decree nisi was pronounced. The application is made on a standard court form and is usually processed within a couple of days. You will need to discuss the timing and impact of the application with your solicitor before it is made.[/bg_collapse]

10.9. Can the Respondent Apply for the Decree Absolute?

[bg_collapse view=”link” color=”#4a4949″ icon=”arrow” expand_text=”Show More” collapse_text=”Show Less” ]If the Petitioner does not apply for the decree absolute.  The Respondent may make a similar application but will need to wait a further three months after the date on which the Petitioner could have first applied (ie six weeks and one day plus three months). The application is not granted automatically and usually requires attendance at court.[/bg_collapse]

Common reasons for returned applications was last modified: May 29th, 2019 by Carol Sullivan

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