Lecture notes
Family Law and Practice LPC WS02 d1
- Module
- Family Law
- Institution
- City University (City)
Family Law and Practice LPC WS02 d1
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LEGALPRACTICE COURSE
Family Law
Workshop 2
Topic(s):
Drafting Divorce Petitions
Learning Outcomes:
By the end of this session you will be able to:
Draft a straightforward divorce petition including the “statement of case”.
Explain the other provisions included in the divorce petition form (Form D8)
Session Activities:
Considering the contents of divorce petitions based on (a) unreasonable behaviour and
(b) adultery
Materials Attached:
Pre-Session Task:
Case File: Mrs Forman (pages 3 to 11)
Blank Divorce Petition/Form D8
Guidance notes on completing a divorce petition
Keynote 4: Drafting divorce petitions based on behavior
Documents to Be Released:
Extract from Mrs Forman’s Petition
Preparation for Session:
Review Chapter 3 from the manual
Read the memorandum attached (d2) and carry out the tasks as directed
Post-Session:
Review your drafting technique and the appropriate provisions of the MCA 1973
2018-lpc-fam-ws02.d1.docx 1/1 © City, University of London 2018
, -Remember with family law, a client may come for divorce, but you will come across and see
actually there are additional matters too
(a) please consider what preliminary issues/advice arise in this case.
Funding: how will the client pay for the legal costs? Can they afford it, any legal aid (if low
income + domestic violence)→ there needs to be risk involved to get legal aid
Children: have they considered who the children will live with/contact with each other.
Might be an informal agreement. Consider mediation (though domestic violence in this
case so not appropriate here)
Domestic violence: does she require any protection orders/advice on housing/financial
benefits - so ask does she feel safe
Financial settlement pending the divorce: is he making any voluntary payments to her at
the moment (spousal maintenance)? What about the children. Consideration mediation
(though domestic violence here) – can make application to child support agency if no
maintenance is given by non-residential parent or not enough is given
The former matrimonial home
Matrimonial Home
If one party sole owner of home then… other has a right of occupation = Home Rights (FLA 1996)
Covers the dwelling that is or was intended to be the family home
Wife can’t be excluded/evicted unless Court Order obtained
Right will end of death of the owner or termination of marriage (when get decree absolute)
(subject to any court order)
-if the one sole owner decides to sell the property→ can be very difficult for the residential parent→
need to safeguard this→ the other has an automatic right of occupation under FLA (VERY
IMPORTANT RIGHT) that only covers matrimonial home (so cannot be evicted from house unless
court order)
-this is an automatic right, but for it to be effective, needs to be registered:
However to be protected the W’s right of occupation MUST BE registered
Unregistered land – Class F land charge registered against H’s name
Registered land – Notice in the Charges Register (Form HR1) (Home Rights Form 1)
→Would prevent sole owner from selling, then buyer will see official copy, and wife will then need to
give consent to any sale
What action should be taken if parties are joint owners of FMH and are in the process of a divorce?
Find out if they are joint tenants or tenants in common
If joint tenants – this should be severed and converted to a tenancy in common
Parties should also make a new will
If joint tenants – this should be severed and converted to a tenancy in common→ NEED TO
SEVERE IT AND CONVERT TO TENANCY IN COMMON→ as protects, if one dies during process
of divorce, it will automatically pass to the other (which would not want as getting a divorce)
Why is Mrs Forman entitled to legal help?
Victim of Domestic Violence + Low income=Legal Help = client acting in person
© City, University of London 2018 2/13 2018-lpc-fam-ws-02-d1.docx
,Divorce Petition
Procedural Rules for divorce
Every divorce is started by petition
Form D8
It is the central document in the case and must be prepared carefully
It is filed by the Applicant and served on the Respondent (petitioner/applicant→ in the exam
can use either term but just use one consistently)→ then sent to respondents
User-friendly – as more parties acting in person
Section 1
• Self-explanatory
• But note – top right-hand corner can now pay by credit card
• Can be made online
Section 2 & 3
Self explanatory but note…
A’s address
• Can leave blank e.g. threatened by R, domestic violence, child abduction etc.
• File A’s details confidentiality with the court using Form C8 (if do not complete address, then
do this form)
• A’s address for service can be solicitor
R’s details (Section 3)
• To be completed to the best of A’s knowledge (e.g. may not know current address of
respondent)
• R’s address for service can be R’s solicitor
Section 4: details of marriage
• Taken exactly from the marriage certificate
• The Petition will be rejected if the details differ or are incorrect
• Note: Question 4.2 can apply without marriage certificate but will delay matters
• Need to attach the marriage certificate (if not, then will be delayed whilst it is obtained)
Section 5: Jurisdiction
• Need to link the parties to the jurisdiction of the court in England and Wales
• Normally tick 1st and 5th statement
Section 6: The Fact(s)
The fact(s): why has the marriage broken down irretrievably
Can cite more than one fact but must ensure appropriate particulars are given in Section 7.2
E.g. behaviour, then give details of the behaviour
Section 9: Other Proceedings
• Covers completed proceedings or abandoned proceedings
• E.g. domestic violence, adoption, occupation orders, injunctions etc (civil remedies for DV→ if
there are other proceedings need to state the outcomes)
Section 10: Financial Orders
• Always tick “yes” for financial orders (even if very wealthy, as if later needs order will be more
difficult)
• Keeps options open
• Can narrow down which financial orders are applicable later once details of assets etc are known
2018-lpc-fam-ws02.d1.docx 3/1 © City, University of London 2018
, Section 11: Summary (What you are requesting of the court)
• 11.1 – self explanatory→ Marriage to be dissolved or CP, judicial separation
• 11.2 Costs
If A is receiving full legal aid or private client – include costs request
• General rule
-Behaviour & Desertion = Respondent to pay
-Adultery – R to pay unless s/he can show that the adultery took place after the marriage
broke down (there is a defence if R can show adultery took place after marriage broke down)
-2 years separation – 50% each
-5 years – no costs order (as do not need other parties consent)
Common to see – R to pay the costs of the divorce should the proceedings become defended
Who can sign the Petition?
• Legal Help = client to sign = acting in person (lowest form of legal aid, so solicitor just assists)
• Party acting in person = the party must sign
• Solicitor can sign if acting on behalf of the applicant
TASK: Mrs Forman
Go Back to Section 6 of the Petition
Tick the relevant Fact(s) that apply to show that the marriage has irretrievably broken down…
• Now go to Section 7.2
Typical Exam Question Could Be:
What facts from the client’s statement would you include in her divorce petition to show that Section
1(2)(b) MCA 1973 has been made out in this case? DO NOT DRAFT THE PETITION. Explain why
would you include those facts? (up to 15 marks)
-in the exam, there is no drafting of this statement, will be given a very detailed statement of facts
and answer a Q like the one above
FACT APPLICATION IS IMPORTANT
KEEP IN MIND GUIDANCE
Need to see what facts to include
Section 7: Statement of Case
• Most important section
• Unreasonable Behaviour
• Rule of thumb – 6 incidents – the first (show when started), the worst and the last (when broke
down) – shows length of time the applicant suffered for
• Chronological order
• If long marriage – set the scene (e.g. couple married on x date and were happy. However, then
the first incident)
• Include sufficient details to identify each incident and to show that it constitutes unreasonable
behaviour (dates etc) – give a narrative with dates, so court can see how long unreasonable
behaviour been (does not need to be exact dates, can be e.g. in an around March 2019 etc)
• If A has suffered an injury – this should be included - mental or physical→ affect it has on
applicant, even if mild like sleepless nights and worry
• Keep in mind test in Livingston – Stallard→ subjective test (personality of parties)
• In all cases, it should be made clear whether A & R have ceased to co-habit and if not, why not
(need to explain why they are still living together e.g. for children or because
applicant/respondent does not have enough money to move out or cannot find suitable
alternative accommodation)
• Any periods of co-habitation should be included (explain why if this has happened e.g. children
or applicant thought respondent would change)
© City, University of London 2018 2/13 2018-lpc-fam-ws-02-d1.docx
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