Family Law Blog

No fault Divorce Bill

05 April 2016, by Taylor King Family Law Solicitors

The Private Members’ No Fault Divorce Bill will be presented again in the next session of Parliament which commences on 18th May 2016. It was expected to have its second reading debate in March however, the motion was not moved and there are no available days left before the end of the current parliamentary session in which it can have its second reading.

The Bill makes provision for the dissolution of marriage or civil partnership when both spouses separately make a declaration that their marriage or civil partnership has irretrievably broken down. There is no requirement to prove any other facts unlike the current divorce procedure which requires proof of either adultery (not available for same sex marriage or civil partnerships), unreasonable behaviour, desertion or separation for two or five years.

Divorce Fee Increase

11 March 2016, by Taylor King Family Law Solicitors

We reported in July that the Ministry of Justice had plans to increase the court fee for issuing divorce petitions. It was announced on 17th March that as from 21st March 2016 the court fee for issuing divorce, dissolution and nullity petitions will increase by more than a third from £410 to £550. It is normal for fee increases to be announced only a couple of days before implementation to avoid any last minute rush to issue proceedings to utilise the lower fee.

At the moment this has been the only court fee relevant to family law proceedings to have been increased and full or partial fee remissions are still available for those on a low income or benefits.

Muslim Marriage and Divorce in Britain

25 February 2016, by Taylor King Family Law Solicitors

The Muslim Woman’s Network (MWNUK) has published guidance on Muslim marriage and divorce in the UK.

The report is aimed at Muslim woman so that they are better informed about their rights and practices relating to marriage and divorce. MWNUK promotes the registration of Muslim marriages, i.e. having an additional civil marriage, so that a union is valid under English law.

The guidance includes real case studies and covers commonly asked questions such as seeking permission of parents, marrying outside of their faith, valid and invalid marriage and barriers that Muslim woman face when there are trying to get divorced.

The report can be found here [http://www.mwnuk.co.uk//go_files/resources/MWNU%20Marriage_Divorce%20Report_WEB2.pdf].

When a Petitioner Will Not Apply for the Decree Absolute

11 January 2016, by Taylor King Family Law Solicitors

For whatever reason, a respondent in divorce may be faced with a spouse who will not apply for the decree nisi to be made absolute and therefore bring their marriage to an end.

In those circumstances there are options available to the respondent: Read more →

Court fees rise

17 July 2015, by Taylor King Family Law Solicitors

The Ministry of Justice has unveiled plans to increase court fees. Fees for divorce proceedings will increase from £410 to £550.
However, fee remissions will still be available for petitioners who are on a low income with no capital resources. The Ministry of Justice has said that it will make this remissions scheme more generous than it currently is. It will increase the amount of disposable capital allowed to have to qualify for remission and will consider whether other forms of payment or benefit should be excluded from the disposable capital test.

Although there has not been an announcement as to when these increases are to come into effect, it is usual for there only to be a couple of days notice. Therefore, if you are thinking of a divorce, it would be cheaper to issue proceedings sooner rather than later.

The difference between divorce and judicial separation

03 September 2014, by Taylor King Family Law Solicitors

There are various differences between divorce and judicial separation proceedings and these need to be considered before any decision is made.

The main difference is that unlike a divorce, in judicial separation proceedings the marriage is not brought to an end. The parties might accept that the marriage is over but they are not permitted to remarry unless they obtain a divorce. It is not necessary for the marriage to have irretrievably broken down. Irretrievable breakdown is the only ground for divorce supported by adultery, behaviour, separation etc. to show the breakdown of the marriage.

The court can deal with financial issues on separation both in divorce and in judicial separation proceedings. What the court cannot do is to make a pension sharing order.

The main advantage to issuing judicial separation proceedings is that proceedings can be issued upon the breakdown of the marriage. The parties do not have to wait twelve months and one day as in divorce proceedings in order to issue a petition. This enables parties to make financial applications at an earlier stage.

On the other hand, the main advantage to a divorce is that the marriage can be brought to an end so that the parties can remarry and the courts can make a clean break order with regard to financial issues.

Quick Divorce – how long does it take to get a divorce?

19 October 2013, by Taylor King Family Law Solicitors

Gossip columns often report that one celebrity couple or another has been granted a “quickie” divorce, including most recently that of Nigella Lawson and Charles Saatchi.

Many online services offer quick divorces as if they were different to a divorce offered elsewhere.

In reality there is no such thing as a “quickie” divorce. All divorces in England and Wales take approximately the same time from when the petition was issued.

The length of the process will depend on how quickly the other spouse can be ‘served’ with the divorce petition and thereafter whether the proceedings are contested or undefended.

Service of the petition

The court needs to know that the  other spouse (called ‘the respondent’) is aware of the divorce proceedings. Once a divorce petition is issued it is sent by the court to the respondent together with a form called the ‘acknowledgement of service’. The respondent has to complete this form and send it back to the court as evidence that he/she has received the papers (that he/she has been “served”). If the respondent does not do this, it can cause delays in the process.

Personal service of the divorce petition

Usually, when the acknowledgement of service has not been sent by the respondent, arrangements have to be made for him or her to be personally served with the divorce papers. This is done by a process server, who is a person who visits the respondent and personally hands the divorce papers to him or her. A statement from the process server confirming personal service on the respondent is sufficient to enable the divorce to proceed without any further involvement of the respondent.

Dispensing with service

Difficulties can arise where petitioner does not know the whereabouts of their spouse. In certain circumstances an application can be made to the court to “dispense with service”, which means the divorce can proceed without the other party being served. For example, Taylor King recently acted for a client whose wife had emigrated shortly after separation and after making extensive enquiries was unable to ascertain her address. In those circumstances the court gave permission for the divorce to proceed without serving the respondent wife.

Service by alternative means

The court can make various orders with regard to service of the Respondent by alternative means. These include granting permission for the respondent to be served at their place of employment or a family address. Such an order is very useful where the respondent has moved back to his/her country of origin. More recently the courts have given permission for the respondent to be served by email or on Facebook. These orders require an application to the court, which can extend the process of obtaining the divorce.

Obtaining the decree nisi

In most cases, however, the respondent returns the acknowledgement of service. The petitioner will then file a statement in support of his/her petition and attach to that statement a copy of the acknowledgement of service which is evidence the respondent has been served.

If the respondent wants to defend the petition he/she needs to file an ‘answer’. Almost all divorces proceed uncontested. Contested divorces are very expensive and the fact that one party has issued the divorce proceedings indicates that they regard the marriage as over.

Uncontested divorces

For uncontested divorces, the court lists the case for a decree nisi hearing. This is not a hearing in the sense that both parties have to attend to provide evidence to the District Judge. It is merely a paperwork exercise when the District Judge declares that the petitioner is entitled to their decree nisi. The court has already decided that the petitioner is entitled to the decree before it is listed for the hearing. It is a common misconception of clients that the Judge makes the decision at the hearing and that their decree nisi could be refused.

Contested divorces

In the rare case of a contested divorce, the court will list a hearing to hear from the parties and decide whether the marriage has irretrievably broken down.

Built-in delay period

After the decree nisi has been declared there is a ‘cooling off’ period of six weeks and one day before the petitioner can apply for the decree nisi to be made absolute. The decree absolute brings the marriage to an end. There is often a misconception in the press that the decree nisi hearing terminates the marriage.

The time it takes to get a divorce is controlled to a significant extent by the court itself and how long they take to process paperwork. Because of the built in delays in the divorce process, i.e. waiting six weeks and one day between the decree nisi and applying for the decree absolute, the average undefended divorce will take between 4-5 months.

Read more about the decree nisi and decree absolute.

 

“Forum shopping” and habitual residence

19 August 2013, by Taylor King Family Law Solicitors

Taylor King frequently receives enquiries from people overseas about whether or not they can issue divorce proceedings in England & Wales. The matter is governed by Brussels II, which is an EU Regulation on conflict of law issues in family law. There are numerous grounds for jurisdiction set out in Brussels II all of which include an element of “habitual residence”.

Increasingly large numbers of wives of wealthy foreigners are seeking to issue divorce proceedings in London because the English courts are regarded as having a more generous approach to financial settlements. This is known as forum shopping.

The case of Saward v Saward [2013] EWCA Civ 1060 is an example of a wife forum shopping using her husband’s alleged habitual residence in England. The case concerned an application for permission to appeal a decision to set aside a decree nisi on the basis that the husband was not habitually resident in England and therefore the English court did not have jurisdiction.

The husband was a British national and the wife was a national of Romania and Canada. The husband had been living in Spain since 2002. They married in 2009 and the marriage broke down in June 2011. The wife issued divorce proceedings in England in July 2011. The decree nisi was declared on 11th November 2011. The husband succeeded in applying for the decree nisi to be set aside because he was habitually resident in Spain. Permission to appeal was sought by the wife. However, this was refused.

Habitual residence is the place where a person has established, on a fixed basis, the permanent or habitual centre of their interests.

The wife argued that the judge had not taken into account the fact that the husband rented out a house in England, his state and private pensions were English, the majority of his assets were based in England, he had transferred monies from Spain to England, he paid taxes as if he were domiciled in England, he used an address in England for significant legal documents and had not renewed his Spanish residence certificate which had expired in 2009.

However, the appeal was refused because the judge had carefully evaluated all the factors for and against habitual residence and concluded that the factors against habitual residence in England outweighed those for it. Those factors included the length of time that he had resided in Spain and the fact he had residency (despite not applying for it to be renewed), the fact that the matrimonial home was always in Spain and he had no home, car or personal possessions in England and the small number of visits he had made to England. He had recently been in England living on his yacht whilst he refurbished it to take back to Spain.

Black LJ observed that at the time there was no Court of Appeal authority concerning the question of habitual residence in Brussels II but was not persuaded that this was an appropriate case to explore the issue.

Husband hiding assets sent to prison

09 January 2013, by Taylor King Family Law Solicitors

In the case of Thursfield v Thursfield the husband was sentenced to a maximum of two years imprisonment for contempt of court.

The application was brought by the wife against her former husband relating to a financial remedy judgment made in Michigan. The wife sought to enforce the order of the Court of Michigan in the courts in England and Wales. It was held that the parties had a sufficient connection with this country to do so despite still living in Michigan.

There were previous orders in these proceedings requiring the husband to make specific financial disclosure with to which, to all extents, he failed to comply.

The husband maintained that his assets merely consisted of a couple of pensions he could not access and he deliberately refused to say what had happened to a payment of £3.5 million he had received from one of his former employers adopting a “couldn’t care less” attitude about the orders for disclosure (compounded by his absence at this hearing).

The wife suspected that her former husband had hidden his assets behind his new wife or a trust enabling him to continue his lavish lifestyle and not comply with any court orders. This suspicion was made more persuasive when the husband replied to a question about how he funded his legal fees by stating that they had been funded by his new wife.

His Honour Judge Purle QC held that the husband was in contempt of court. It was suggested by counsel for the husband that he should be given one last chance to make disclosure or any sentence should be suspended. However, Judge Purle held that neither of those options presented would “adequately reflect the gravity of the breaches in this case”. He therefore imposed the maximum sentence of two years imprisonment; twelve months as a punitive sentence and twelve months “as a coercive measure in order to encourage full and prompt compliance hereafter”.

International divorces

18 December 2012, by Taylor King Family Law Solicitors

During the last twelve months we have been instructed by clients involved in divorce and family law cases involving nationals of or having connections with Australia, South America, Canada, the USA, Europe, the Middle East, Asia and Africa. This article explores the English court’s power to divorce couples where there is an international element.

The Court’s power to grant a divorce in England or Wales depends upon whether a spouse has a sufficient connection with this country.

It does not matter if the divorcing couple were married abroad. If the marriage certificate is not in English it will need to be accompanied by a certified translation when the divorce proceedings are issued.

In March 2001 a European Directive came into force which clearly sets out the criteria for issuing a divorce in England and Wales. One of the following must be satisfied:

  1. Both parties live in England and Wales
  2. Both parties were jointly habitually resident in England and Wales and one spouse still resides here
  3. The Respondent is habitually resident in England and Wales
  4. The Petitioner has been habitually resident in England and Wales for the last 12 months
  5. The Petitioner is domiciled in England and Wales and has resided here for at least six months
  6. Both parties are domiciled in England and Wales

Habitual residence is proved by being in England and Wales for a settled purpose with the intention to remain here for a significant period of time. A person can only have one habitual residence.

Domicile is harder to define. A country of domicile is the country where a person has decided to live and has their closest ties. A person can either have a domicile of origin (acquired automatically at birth) or a domicile of choice where a person resides in a country other than their domicile of origin and intends to make that country their permanent home. Like habitual residency, it is only possible to have one country of domicile. However, it is possible to have a different habitual residency to country of domicile.

For example, if both parties are originally from this country and are currently temporarily living abroad for work purposes the courts of England and Wales would have power to issue divorce proceedings because both parties’ domicile of origin would be England and Wales.

Both habitual residence and domicile are decided on fact and if you are in doubt about whether you would be able to issue divorce proceedings in England and Wales it is best to consult a specialist family lawyer.