Lecture notes
Family Law and Practice LPC WS01 d2
- Module
- Family Law
- Institution
- City University (City)
Family Law and Practice LPC WS01 d2
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LEGAL PRACTICE COURSEIn-Session – Guidance note to Task 2: Divorce Procedure
_____________________________________________________________________
Answer to Question 1:
On behalf of Jim Brunt you should file:
petition plus two copies
marriage certificate
certificate of reconciliation, notice of acting and the fee
Answer to Question 2:
You will advise your client that she must not effect personal service on the respondent. In this
case you can arrange for personal service to take place via a proper agent (process server).
Although nothing to prevent you in the rules from arranging personal service later that day if your
client tells you her husband will be home later.
Without the acknowledgment of service there is no evidence that the respondent has been
served. You could apply for service to be deemed to have taken place as you have evidence in
the shape of the first solicitor's letter that the respondent had read the petition.
You cannot use postal service or bailiff service when you do not have the respondent’s address.
You could try to have personal service effected at the home of the respondent’s mother or ask
the court for an order for substituted service by post at the mother’s address.
Answer to Question 3:
You should draft an affidavit on your client’s behalf giving more detail of the allegations in the
petition. Note, you should not make fresh allegations. The judge will then reconsider whether the
Decree Nisi should be granted.
Answer to Question 4:
You should advise your client that he cannot marry again until Decree Absolute has been
pronounced. You should:
check with the court whether the decree has been pronounced (it may not have
been received by your client)
if the Decree Absolute has not been pronounced you may make an application on
your client’s behalf, on notice (4 days is minimum). You can do this as more than
four and half months have passed since the decree nisi.
You may attend a short hearing on a day fixed by the court
Answer to Question 5:
It is a defence to proceedings under (e) that the dissolution of the marriage would cause grave
financial or other hardship to the respondent and in all the circumstances it would be wrong to
dissolve the marriage. MCA 1973 5(1). Court must consider all circumstances. Although in
theory it is open to a respondent to rely on grave hardship other than financial, there have been
no reported successful cases. However, in the case of Banik v. Banik [1973] 1 WLR 860 a Hindu
wife pleaded that she would ostracised by her community if the divorce went ahead. The court
held prima facie that this would be an example of grave hardship. Despite this a decree was
granted as the court found that the evidence presented by the respondent did not substantiate
her claim.
A s.10(2) application can be made to apply to the court to consider the respondent’s financial
position as it will be after the divorce. The application is a delaying tactic not a defence as the
respondent cannot prevent a divorce being granted by a 10(2) application. What she can do is
substantially delay the granting of the Decree Absolute which puts pressure on the petitioner to
make acceptable financial arrangements for her.
© City, University of London 2019 1/1 docs_352358853.doc
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