Monday, 24 October 2016

SITTING ON A DIVORCE PETITION

Curiously, there is no time limit for serving a divorce petition on the other party: likewise, a petition for nullity, judicial separation or civil partnership dissolution. So, for example, you could issue  a divorce petition against your wife tomorrow, tell the court you want to arrange to get it served on her and then sit on it. 

Why would you want to do that? Give her a nasty surprise when you next argue? That would be no way to conduct yourself. More likely, you wish to pounce if she brings divorce proceedings against you in another EU country but you want the case to be dealt with in England and Wales. Generally, if both parties bring matrimonial proceedings in different EU countries, the courts of the country in which the first case was started will get to deal with the case and the courts of the other country will  not be allowed to touch it. That's unless there was a failure to act with reasonable promptitude in serving the petition by the party who would normally be the winner of the race.

In one High Court case here in 2014 it was said that to issue a divorce petition prematurely was the equivalent of laying one's towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies.

Well, last week in another High Court case, the wife had pounced first and the husband had later started proceedings in Germany before being served with the wife's papers. It was not until four months and a day after the wife's petition had been issued that the husband was served with the papers at Heathrow airport. In the particular circumstances, it was held that the wife had acted with reasonable promptitude and so we keep the case and the German courts will be out of it.

I'll have a fiver on a change in the law within the next two years which requires matrimonial petitions to be served within specified periods. And, if I'm wrong, I'll eat another wig.