Divorce Process Part 2: The Acknowledgement of Service Form

divorce

This is the second part in a four part review of the Divorce Process entitled The Acknowledgement of Service.

Once a divorce petition has been filed at the court, it will normally be posted to the other spouse to the marriage. The spouse being divorced is referred to as the ‘Respondent’.

Along with the divorce petition, the court will also send the Respondent some other documents too called an Acknowledgement of Service Pack. One of those forms needs to be filled in by the Respondent, signed by them or their solicitor and returned to the court.

The Respondent must acknowledge to the court within 7 days of receiving the acknowledgement that they have received the divorce petition and they must also notify the court whether they consent to the divorce proceeding undefended or whether they do not.

At this stage in the proceedings the Respondent needs to consider their position very carefully because this may be the only opportunity the Respondent has to alter the direction of the divorce.

Considerations for the Respondent after receiving the Divorce Petition and Acknowledgement of Service Pack:

The Respondent should at this stage consider some of the following issues before returning the Acknowledgement of Service Form to the court:

1. Are you willing to agree to the divorce progressing on an undefended basis? In other words, do you contest the divorce as set out by the Petitioner or are you willing to agree to allow the Petition to proceed without you defending the suit?

Although it is unusual for Respondents to defend a divorce in England, the Respondent can nevertheless cross-petition and issue their own petition for a divorce in response to the existing petition and that way the Respondent can become the person seeking the divorce.

This is a fairly complex area of the divorce process and if it applied to you, then you are well advised to contact us. We specialise in complex and intricate divorces.

2. Are you prepared to accept the reasons for the divorce as they have been set out in the Petition by the Petitioner?

There will often be considerable disagreement between the parties as regards the grounds of the divorce and this may well be an area on which the Respondent may wish to seek legal advice from an independent Solicitor.

It is important at this stage in the proceedings not to allow emotions to cloud your judgement. If you agree with the main principal of the divorce petition, namely that the marriage has irretrievably broken down, then you may well be advised to take a conciliatory approach to some or all of the allegations set out in the petition by the Petitioner.

After all the objective here is to end the marriage, not to lock the parties into protracted and expensive litigation.

A divorce petition will normally be defended only where you have a very strong objection to the grounds put forward by the Petitioner or, where the petition is untrue in some material way.

3. If the Petitioner has included a Prayer in the divorce that you pay the costs of the divorce, are you prepared to pay this?

It is vital that you relay your position in this regard to the court at this stage on the Acknowledgement of Service form. The Respondent may not get another opportunity to contest paying the costs of the divorce later.

Although generally parties to a straightforward divorce are not required to attend the court, the most common situation where they are required to attend is when the issue of costs is hotly contested and the judge may want to hear from the Respondent and in some cases also the Petitioner about this.

The Respondent should bear in mind that the costs of the divorce are just that! They are the costs of the divorce only and not the costs of any other aspect of the separation such as the costs of dealing with disputes about the children or the costs of the financial settlement of the divorce.

Where the Respondent is prepared to pay the costs of the divorce, they should also consider limiting their agreement to a specific sum of money.

If the Petitioner is seeking more than this, be wary.In many cases where the divorce is amicable and agreed between the parties it is fair that the parties also split the costs of the divorce 50/50.

4. Where the Respondent has also received a Statement of Arrangements form, filled out by the Petitioner, relating to the children of the marriage, the Respondent should read that form carefully and consider whether they agree with what has been set out.

Although the matters set out are not set in stone, it may be worthwhile for the Respondent to also send the court their own Statement of Arrangements form when returning the Acknowledgement of Service form to the court.

Once you have decided on each of the above three items, then you complete and return (to the court) the acknowledgement of service.

Process

The respondent has 14 days from the date of receipt of the divorce Petition and the Acknowledgement of Service Pack to file the acknowledgment of service form. Where a Respondent intends to defend the divorce they then also have a further 14 days in which to file an answer to the divorce petition.

Once the acknowledgement of service form has been filed at the court by the Respondent, a copy will be sent to the Petitioner by the court and the Petitioner is then required to swear an statement in support of the divorce petition. More about this in our next article on the divorce process.

Rarely, a difficult Respondent will choose not to file the acknowledgement of service form with the court. This causes delay. We specialise in divorce work so if this has happened to you contact us and we can handle your divorce for you.

In these circumstances the petitioner must either prove to the court that service of the divorce petition has been effective. This usually requires Personal service by a court bailiff or a process server.

 Frequently Asked Questions

I don’t agree with the ‘unreasonable behaviour’ grounds set out by the Petitioner, What can I do?

Unreasonable behaviour grounds will always set out a series of events that will in themselves be upsetting. In situations where you accept that the marriage has irretrievably broken down, then you may consider simply allowing the petition to proceed undefended so as to end the marriage sooner rather than later.

That may also be a cost effective option. However, if the unreasonable behaviour allegations are completely unacceptable to you, you could negotiate with your spouse to amend the petition to something that is more acceptable to you or, in extreme situations where you feel strongly about the matter, you may even cross-petition for a divorce based on your own unreasonable behaviour grounds.

Bear in mind though that this will complicate matters and will cost more in legal and court fees.

The Petition is based on two years separation and requires my consent, but we have been living together at the same address since we married. I don’t want to lie to the court, what can I do?

The ‘fact’ of two years separation with consent does not require that you have been living at different addresses from your spouse.

You can live at the same address but have had no ‘common life’ together for at least the past 2 years. This ground is still effective if you have been sharing the same address but most other aspects of your life have been separate.

For example if you sleep in separate rooms, do not share a common life, socialise separately, eat and shop separately and generally have little joint interaction together then this ground can still be used for what is often called a ‘no fault’ divorce.

It will be for the Petitioner to satisfy the court that although you live at the same address, there has been no common life together for at least two years.

A Petition for divorce based on this ground requires the Respondent to consent to the divorce. If the Respondent does not consent, then this petition will not progress any further through the courts and the Petitioner will need to amend the grounds of divorce to one of the other options available in law.

In the Statement of Arrangement for Children the Petitioner has stated matters that I do not agree with, what can I do?

A Respondent can always file their own statement of arrangements for children. The matters set out in the Statement of Arrangements for Children are not binding in any way.

They are merely set out so that the District Judge hearing the divorce petition can be satisfied that the basic needs of any children of the marriage are being met.

If there are disagreements on matters such as where the children should live or the amount of time that they will be spending with one of the parents, then the Respondent should file their own Statement of Arrangements for Children and, it is vital that the Respondent seeks immediate legal advice in relation to the rights of the children and perhaps bringing separate proceedings in court in relation to the children pursuant to section 8 of the Children Act 1989.

This is an area of law where expert advice is strongly recommended, if necessary.

The Petitioner has included a Prayer in the Petition seeking an Order relating to the finances of the marriage. What does this mean and what will happen next?

It is usual practice for this to be included in the divorce Petition. However; these matters will not be dealt with by the court independently. It is up to the parties to the marriage to apply to the court separately within the divorce proceedings, asking the court to address the issue of the finances of the divorce.

The procedure for dealing with the finances of the divorce is called Ancillary Relief proceedings.

It is commenced by filing at court a form called Form A. Once filed this starts off a new court process dealing with the finances and is effectively separate from the divorce matter in most respects. See our separate articles about Ancillary Relief for more details of this procedure.

Should you have any queries about your own personal circumstances contact us on 020 8401 7352.

Contact us

Divorce is a potentially complex legal process and you should always ensure that you receive independent legal advice specific to your particular circumstances from a qualified adviser.

What is a Managed Divorce

What is a ‘Managed Divorce’

The Coop recently suggested that solicitors should stop charging for divorce work on an hourly basis. It’s an excellent idea and one that we have been committed to for the past 11 years. Indeed we first introduced our fixed fee fixed price divorce to the market in 2002. What this means is that you pay the fee agreed at the start of the matter. We cannot and do not hype our fees half way through. The only exception to this is if the matter becomes unduly complicated. That occurs very very rarely. In all the years we have conducted these fixed fee divorces for our clients there have been few occasions when we have had to ask clients to pay additional fees over and above those initially agreed. If indeed that ever happens, we always provide the client with a comprehensive explanation for the change in circumstances and have never had a single client fail to recognise that their matter genuinely and significantly changed during the course of the work.

But what about managed divorces? These are very popular with some people and can be purchased online for relatively modest prices. The consumer can be forgiven for wondering what they are getting for our fixed fee divorce and what they are not getting for a managed divorce from an online provider. Well, the answer is quite simple. Our divorce package is conducted by a solicitor and you will have the same level of service and attendance provided for a fixed fee divorce as you would have were you paying us an hourly fee rate. We take all the important information from you and conduct the whole job on your behalf. At every stage your solicitor will communicate with you, as a real person, by telephone, by email and whenever necessary face-to-face. We will explain every legal stage, prepare all your documents for you and take full responsibility for whatever happens. Indeed we are regulated by the Solicitors Regulation Authority and we are insured accordingly. As responsible legal advisers we are totally accountable for what we do. Therefore if we were to get it wrong, and I am delighted to say that has never happened, you have a real solution available. You can complain against us, get compensation from our insurers and even have us shut down if we are blatantly negligent. Looking at it from our perspective, we certainly are taking some risks with every divorce case we take on. We must be certain of what we are doing and moreover certain that what we are doing is right for you, our client!

So returning to the ‘managed divorce’ scenario, what exactly are they providing you? Well, we don’t really know the answer to that question. We know they sell you the divorce petition forms. Albeit that these are free to download online from the Ministry of Justice website. They also send you a brochure telling you how to fill in the form; but then again that guidance is also available from the Ministry of Justice website. Managed divorce companies do send you some glossy online brochures. Unfortunately we don’t. We just send you letters detailing all the processes and telling you what is happening. Therefore we certainly miss out on the glossy brochure part. Perhaps we will rethink that aspect of our system soon. But apart from the glossy brochure, which we stress is online and not printed anyway, what else are you getting from a ‘managed divorce’ website? Well the answer is on the site profile. They are DIY divorce merchants. That means it is a Do It Yourself Divorce. Therefore you Do It Yourself. They don’t do it for you. If that suits your temperament and your budget that all very well. We won’t deny that some people are happy doing it that way. But those same people could save even more money by buying a divorce pack from WH Smiths. Those only cost £20. Better still just download the forms and do it yourself for free. Why pay anything at all to anyone? After all the ‘managed divorce’ websites are not providing you with a solicitor. Some ‘managed divorce’ websites do have a single lawyer employed to meet the regulations. But the work will be conducted by tens if not hundreds of telephone staff. The lawyer will never see your file let alone represent you.

However; if you want peace of mind, satisfaction in knowing that legalities are being dealt with properly, on time and with your personal best interests at heart; indeed if you want to be certain that every aspect of the process is being negotiated in your favour and that your financial position and potential liabilities to your ex-spouse are addressed, then you would be our ideal client. Although some aspects of a divorce are straightforward and relatively simple, not all of it is like that. We recently represented a client who had purchased a cheap online ‘managed divorce’ 3 years ago. At the time, he was delighted and during the divorce process he settled the financial aspects of the divorce by paying his wife £160,000. Unfortunately for him his ex-wife came back 3 years later and claimed an additional £290,000 off him because the first settlement had never been set out legally and filed at court by his online ‘managed divorce’ advisers. It was a painful example of what can go wrong. Had he been represented by a solicitor that could never have happened, and indeed if it did then compensation for the additional claim and probably even for all his legal fees was not far away. In the circumstances though the managed divorce company got away by relying on a clause in their online terms of service which cleared them of all responsibility. It was one of those terms that appear on an obscure page of the website which nobody visits. All he did was check the box that says ‘I have read and accept the terms of service’.

If you want to be certain of what you are doing then like in every other aspect of life, you need to keep a careful watch out. Judging the value of services on cost alone is never a good idea and when it comes to buying legal services it can have a very hefty sting in the tail. Solicitors don’t just charge more because we are pompous money grabbers. No, we charge more than the fellow online because we know a lot more about what we are doing and we do it far more professionally. As regards the pompous money grabbing thing, you will also be pleasantly surprised to learn that we are far from that. We pride ourselves on being approachable, personable and very professional.

If you need legal advice on a divorce or family law related matter, call us on 020 8401 7352 to arrange an appointment or email us your enquiry at info@solicitorsfirm.com

Are Sharia Divorces (Talagh or Talaq) valid in English law

Are Sharia Divorces (Talagh or Talaq) valid in English law

 

If you marry abroad and obtain a Nikkah abroad in a country which practices Sharia Law your marriage will automatically be legally recognised in England & Wales. However questions can arise as to whether the same applies when you obtain a Sharia divorce, called a Talaq, from abroad. Unfortunately the answer is not straightforward.

 

A Talaq which is recognised in a Sharia Law practising country can be enforced and recognised in the England & Wales provided that some of the formal requirements set out in law are met. These requirements are:

 

  1. The husband or the wife must be a national of the country where the Nikkah was obtained under Sharia law; or
  2. The husband or the wife must be habitually resident in that country. This requires that the Sharia law country is their usual place of residence and that they ordinarily live there; or
  3. The husband or the wife must be domiciled in the Sharia law country. Domicile is different from habitual residence in law. Domicile is often gained at birth and therefore it is possible to remain domiciled in a jurisdiction even after having left that jurisdiction to live elsewhere. Domicile does not automatically change with immigration status.

 

When one of the parties to a Sharia marriage satisfies at least one of the above requirements, then the procedure to be followed in order for a Talaq to be recognised in England & Wales requires the following steps to be taken:

  1. The Husband is required to give notice in writing of  the pronouncement of the Talaq to the chairman of the Union Council of the ward in which the couple live; and
  2. The Husband must serve this notice on his Wife; and
  3. During the following 90 day period known as iddah there are provisions for attempts of reconciliation. During this period a Talaq can be automatically revoked if a reconciliation is successful.
  4. Where a reconciliation is not successful then following the iddah the talaq will take effect.

It is only in this manner that a Talaq obtained in a Sharia law practicing country will be recognised in English law.

The law will not recognise a Talaq where the husband has pronounced the Talaq in England & Wales alone. Therefore the process outlined above only applies to Talaq’s obtained outside England & Wales in a Sharia law practicing country.

 

For more information about Sharia law and divorce see our earlier post ‘divorce and talaq

 

Despite the above summary Sharia divorce is not a straightforward area of the law. It is fraught with complications and a careful balance must be reached between the expectations of the parties to the marriage and the requirements both of Sharia law and the laws of England and Wales. If you require any specific advice relating to Sharia law or Islamic divorces (Talaq), please telephone 020 8401 7352 to book an appointment to see a specialist divorce solicitor.

Cohabitation Agreements

Couples who live together but do not marry can still have similar rights to married couples,  despite the Government’s U-turn on giving cohabiting couples more rights, says the Law Society

The Law Society has stated that despite the Government’s decision to drop plans to give couples that live together similar rights to married couples, unmarried couples can sign a cohabitation agreement which would give them stronger rights should their partner die or should the couple separate.

The Law Society guidance states that cohabitation agreements which are drafted by a solicitor could potentially put cohabiting couples in a better legal position than their married counterparts should the relationship breakdown. Under current law cohabitation agreements can be prepared for hetrosexual as well as same sex couples.

Law Society President John Wotton said“Although the Government has chosen not to legislate to give cohabiting couples the same rights as married couples, couples can sit down with their solicitor and draft a cohabitation agreement which caters for all eventualities. Unlike pre-nuptial agreements for married couples, cohabitation agreements are recognised by the courts in England & Wales as being legally binding. It is not yet established that pre-nuptial agreements for married couples are binding in the courts In light of the Government’s decision not to give live-in couples the same rights as married couples, there is perhaps a greater need for cohabiting couples to make these agreements as they do not have the same automatic protections as married couples. For example, when a spouse dies their husband or wife gains ownership of their estate in the absence of a will.”

Cohabiting couples should seek legal advice from their solicitor when drafting cohabitation agreements, as often there is more than a home that needs to be considered. Child care and other assets need to be taken into account, as well as property rights.

The Society also urges cohabiting couples, in the absence of protections under intestacy laws, to write wills to ensure their partner does not go without should they pass away. Without a will it is possible someone could end up with nothing from their partner’s estate.

The Law Society provides guidance to couples living together in their article Setting up Home with Your Partner

If you are considering entering into a cohabitation agreement with your partner, telephone us on 020 8401 7352 for a free telephone consultation and guidance or, to book an appointment.

Link to our page on Cohabitation Agreements

Telegraph article: How unmarried couples can have greater legal rights than husbands and wives (13.09.11)

Law Commission’s Prenuptial Agreements Consultation

Law Commission Publishes Marital Property Agreements Consultation

Tuesday 11 January 2011 

In recent years there has been strong support for a change in the law calling for pre-nuptial agreements to be made legally binding.

The Law Commission has today launched a consultation paper, asking for views on a range of potential options for reforming the law of pre-nuptial, post-nuptial and separation agreements. The paper comes just a few months after the historic Supreme Court judgment of Radmacher vs Granatino, which many had thought paved the way for pre-nups to become binding.

The consultation paper is viewed by many as a first step toward making prenuptial agreements binding under English Law. The consultation paper sets out the challenge of reforming the law in such a way that gives couples greater financial certainty whilst protecting the vulnerable from entering into unfair agreements. However one area of concern has always been the fate of children, particularly thise born after the parties enter into prenuptial agreements. The welfare of children during and after divorce has always been an integral concern of the English legal system in relation to divorce. The consultation from the  Law Commission closes on 11 April 2011.

The consultation documents can be downloaded and viewed from here:

Marital Property Agreement Consultation – published 11 January 2011

Full Consultation Paper

Summary Consultation Paper

Law Commission Press Release