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Annulments

In certain circumstances parties may wish to seek a Decree of Nullity rather than a Decree of Divorce. In comparison, relatively few Decrees of Nullity are sought.

There are two ways of obtaining a Decree of Nullity:

 1.  Declaring that a marriage is void from the outset, in which case it is treated as never having existed at all when the Decree is granted.

2.   Declaring that a marriage is voidable, in which case it will be treated as being valid and subsisting until the date the Decree is actually obtained.

 Void Marriages

 A marriage will be void in situations which include the following :-

a)            Where the parties are too closely related to each other.

b)            Where either party was under 16 years of age at the time of the ceremony.

c)            Where either party was already lawfully married.

 If a marriage is void it never existed, so theoretically no Decree is actually needed to end it. However, since a Decree is needed if ancillary financial orders are required, a Decree is usually obtained. The procedure follows the standard one of Divorce requiring the issue of a Petition.

Voidable Marriages

 A marriage will be voidable in situations which include the following :-

• Non-consummation – This can be either due to one or other of the parties’ incapacity, or their willful refusal. It should be noted that this ground does not give rise to a voidable Civil Partnership since there is no requirement is such a relationship for there to be consummation.

• Lack of consent, for example due to duress.

• One party was suffering from a mental disorder, such as to make them unfit for marriage.

• An interim gender recognition certificate was issued to the Respondent after the marriage.

As the marriage exists until such time as a Decree of Nullity is obtained, it is necessary for one or other of the parties to start the Petition procedure. A bar to obtaining a Decree can exist if the Respondent can satisfy the Court that the Petitioner, knowing that the marriage could be ended, behaved in such a way as to lead the Respondent to reasonably believe that they would not seek to end the marriage. In addition it would be necessary to show that it would be unjust to the Respondent to grant the Decree.

Generally the Petitioner must apply for the Decree within three years of the marriage, however the Court has discretion to extend the time limit on application to the Court. This time limit does not apply to non-consummation cases, nor to cases based on an interim gender recognition certificate.

Consequences of a Decree of Nullity

 Ancillary Orders – The parties to a suit for nullity are still entitled to apply for all orders in relation to children, property and finance as are available on Divorce.

 Children – Although legitimacy of children has little consequence in law today, under the Legitimacy Act 1976 the children born to parents who subsequently obtain a decree of nullity are automatically legitimate if the parents’ marriage is voidable, because the marriage existed up to the time of the Decree.

If the marriage is void the children will be legitimate if, at the time of conception (or celebration of the marriage, if this is later), both or either of the parents reasonably believed that the marriage was valid and the father was domiciled in England and Wales at the time of the birth, or if he died before birth, he was domiciled immediately before his death.

Wills – A voidable marriage will revoke a Will like any other marriage, however a void marriage does not have this effect as it never existed at all. When the Decree of Nullity is granted, whether in respect of a void or voidable marriage, it will have the same effect on a Will as a Decree of Divorce. This means that the former spouse is to be treated as having died on the date of the Decree.

It should be noted that neither spouse will be able to claim in the event of the other’s intestacy once the Decree is granted.

Choosing Nullity over Divorce

In some cases there can be grounds for both Divorce and Nullity. Whilst it used to be better to apply for Divorce in those circumstances as Divorce has the ‘special procedure’ which is cheap and simple and Nullity cases had to be heard in open Court adding to the cost and publicity, today most Nullity cases are dealt with under the same ‘special procedure’ as Divorce.

The benefit of Nullity over Divorce is that Nullity can be obtained in the first year of marriage whereas for Divorce the parties must wait for a year before making any Petition. Additionally, for some parties there may be religious reasons for wanting to have the marriage declared non-existent rather than dissolved.

This article courtesy of Shmuel Portnoy of Darlingtons Solicitors, who offer specialist divorce and family law advice. If you have an issue, get in touch with Darlingtons.

Facebook responsible for a third of divorces ?

Divorce-Online, which handles a volume of divorces in England & Wales has mined it’s data and asserts that evidence obtained from social network sites is directly linked to a surge of up to 50% in the number of divorces it deals with where behavior is used as the ground for divorce, taken from a sample of 5,000 divorces in 2011. The firm is not saying that facebook has necessarily  caused the divorce, since obviously in most cases there are a variety of factors, it is simply pointing out that evidence which may be the “straw which breaks the camel’s back” is often found on facebook and other social networks.

One interesting aspect of the whole issue of social media is the evidential issue of what happens when evidence is obtained which is not public, such as of one spouse logs in to his or her spouses private emails or communications which are not public. This continues to be a controversial area, and certainly, where hidden financial assets are concerned, the recent Tchenguiz case moved the law much more firmly against evidence which is not properly or lawfully obtained.

Dealing with common divorce problems

There can be situations where the normal divorce procedures cannot be followed, or additional steps must be taken due to the circumstances which arise. These include the following:

Amending an Error in the Divorce Petition.

If an error or omission is discovered in a Petition, such as where a particular financial remedy was not sought, or the parties domicile was stated incorrectly, then the Petition must be amended.

If directions for trial have not yet been made then the Petitioner can amend the Petition without the leave of the Court. However, if directions have been given, or if the Respondent has filed an answer to the original Petition, then leave of the Court will be required before any amendment will be allowed.

Once amended, the Petition will have to be reserved on the Respondent.

Very minor amendments, such as an incorrect date of birth of a child or an incorrect occupation of one of the parties, can be amended by referring to it in the Petitioners affidavit in support. The District Judge will then usually give leave for the Petition to stand as corrected and dispense with the need for re-service.

Alternative Methods of Service

If normal postal service by the Court is unsuccessful or inappropriate in the circumstances, there are other methods of service which can be used. These include:-

 a)      Personal Service by a Court Bailiff or Process Server – This is where the Petitioner has requested either the Court Bailiff, or a private Process Server to track down the Respondent and personally serve him with the papers. If the Respondent returns the acknowledgement of service, then this will be proof of service, but if not the Bailiff or Process Server will provide a certificate/affidavit confirming that the Respondent received the papers. It should be noted that the Petitioner cannot serve the documents themselves.

b)      Deemed Service – Where the Respondent does not file the Acknowledgement of Service, the Petitioner can apply to the Court for the Petition to be deemed served. They will need to satisfy the Court that the Respondent did in fact receive the documentation. This will be in the form of an affidavit stating why the Petitioner believes the Respondent has the papers and attaching any evidence of such.

c)      Substituted Service – Where the Petitioner’s efforts to serve the papers on the Respondent have failed or there is insufficient evidence to show that the Respondent has received the paperwork, then the Petitioner should apply to the Court requesting an alternative method of service. This application must also be supported by an affidavit setting out why there is a need for substituted service. The Court, if satisfied, will then provide for an alternative method, such as by advertisement in a local paper which he is known to read, or to serve a relative whom the Respondent is known to be in contact with.

d)      Dispensing with Service – This is the last resort where all other methods of service have failed. The Court will grant this where they are of the opinion that it is impractical to serve the Petition, or for other reasons it is necessary to dispense with service. This is an extreme measure, as it means that the Respondent can find out later that he is divorced without his knowledge and without having a chance to defend his case should he wish. Any application to dispense with service must be accompanied with an affidavit setting out what the problem is with service and what lengths the Petitioner has gone to in trying to serve the papers on the Respondent. Every effort will need to be shown to have been made.

 Applying for Decree Absolute Out of Time

If the Petitioner does not apply for Decree Absolute for more than 12 months after the Decree Nisi is granted, then their application must be accompanied by a written explanation as to why there was a delay. The purpose of this is to ensure that there has not been an attempted reconciliation between the parties which may have prejudiced the grounds of the divorce, or that there are no additional children who have since been born that must now be considered before the Decree Absolute is granted.

 The Respondent’s Application For Decree Absolute

Whilst usually it is the Petitioner who applies for the Decree Absolute, in some circumstances they may wish to wait before doing so. In such situations the Respondent has the ability to apply for the Decree Absolute after four and a half moths have passed from the Decree Nisi (3 months from the time the Petitioner would have been able to apply). In this case the Petitioner must be served with Notice of the Application. This allows them to make any objections they may have known to the Court, who will them decide based on both parties representations whether to grant the Decree Absolute or delay until further enquiries have been made.

Defended Divorce Petitions

If the Respondent intends to defend the divorce they will have to return the Acknowledgement of Service within 7 days of service of the Petition to give notice to the Petitioner that they intend to defend the case. An ‘Answer’ will then need to be filed within 28 days of service of the Petition setting out their reasons for defending the matter. Should the Respondent not file the notice of intent, they can still file the answer. However if they file the notice, they are not obligated to file the answer.

If the case is considered complex, difficult or grave, then the District Judge is likely to transfer the case to the High Court, otherwise directions for trial will be given which will eventually lead to a hearing in open court.

This guide provided by Shmuel Portnoy of Darlingtons Solicitors, who offer a full range of divorce and family law advice.

More indications that prenuptials to become acceptable in English law

Many readers will know that in the last year there has been a ground breaking higher court decision indicating a shift in the legal significance of prenuptial agreements in English law. Whilst such agreements are not always given great significance by the courts and the courtsd are not legall bound to give weight to them as such, the precedent is nonetheless an important one, suggesting that in appropriate cases, a prenuptial agreement might well offer significant and persuasive evidence which impacts the financial split of assets between a married couple.

In a  further recent development, the above trend has continued, with news that the English courts  have upheld a prenuptial agreement between a French couple who agreed a prenup in French law but then moved to England and so were domiciled here for the purposes of divorce law and jurisdiction.

Cases involving prenuptial agreements, and the agreements themselves are typically considered more by wealthy couples than others, and in the relevant case, the dispute was sizeable since the couple had  assets of over £15 million. In this case, largely due to the prenuptial agreement, the result was a 60/40 split of assets in favour of the husband.

Do you think that prenups will become more common and are they any use for couples who are not very wealthy ? Please do let us know what you think.

Social media & divorce

Social media is proving to be a fertile area for evidence in many types of cases and not least in divorce, with the majority of us active online.

US law is of course different to English law but trends set in the US courts might presage similar rulings by the English courts in the future.

In a recent case from Connecticut in the US a Judge has gone a step further than making an order that social media activity is part of the disclosure process. He ordered that the parties must exchange passwords and allow access to the other party, and not just for Facebook and general social media accounts but also for some dating related sites.

Let’s not lose sight of the fact that under English law, divorce is no-fault based and adultery or unreasonable behavior are simply grounds for divorce, facts which need to be demonstrated to a Judge’s satisfaction of that ground is being relied on for the divorce.

So, evidence from social media can perhaps easily demonstrate that one or both parties were acting inconsistently with the institution of being married and cause some embarrassment and undoubtedly more bad feeling, but in evidential terms, unless one party talks online about assets which they claim not to have, let’s not overstate the importance.

Still, an interesting development and further clear evidence that whilst most people think that online activity is just fun and doesn’t have repercussions, as more and more cases are showing, in a variety of different types of legal dispute, care should be taken with online activity.

Mediation – what is it and what are the pros and cons ?

The purpose of this article is to give a brief overview as to what mediation is and when it should and should not be used.

Mediation is a form of alternate dispute resolution, (more commonly known as ADR), which is a way of resolving disputes between two parties without going to court, by using an independent third party who acts as the mediator. Mediation is commonly used in family law and litigation and in some cases is a prerequisite before the parties can proceed to court. Therefore it is most effectively used in the early stages of a dispute.

The role of the mediator is not to advise the parties, but to help the parties identify key issues of the conflict and to develop a shared understanding of the conflict.  The mediator aids the parties in coming to a realistic, practical and long term solution. Although the mediator controls the meeting process, they do not seek to advise or influence the parties, but they try to facilitate the settlement of the conflict in a mutually agreeable manner.

Mediation usually lasts for one or two sessions, but rarely beyond that as the parties to the mediation attend willingly and are aware that the mediation process is an attempt to settle any issues in a structured, timely way.

There are a number of advantages to using mediation, namely that it is a less expensive and more effective use of time than going to court, it is a confidential process and it offers the opportunity to reach settlement in a number of ways and in a mutually agreeable manner. In addition the mediator can separate the emotional aspects of the case from the key issues and in this way can enable the parties to focus on those issues, whereas without mediation, parties can often end up focusing on less important but more emotional issues, clouding their judgment and leading to a breakdown in communication as a result.

However mediation is not always appropriate, for example where one party has no genuine interest in reaching settlement or where a full public record of proceedings is needed. Parties should also bear in mind that any settlement reached in the process is not legally enforceable.

For divorce or mediation advice, Darlingtons can help. Please do get in touch.

Changing attitudes in marriage

Divorce is an important barometer of society, morals and standards, just as it is said that taxi drivers are a good barometer for the immediate future financially.

So, it’s worth noting and considering the news that it seems that affairs outside marriage are no longer a significant factor in the decision to divorce.

Accountants and business consultants Grant Thornton commissioned a study of family solicitors which established that now, the most utilised reason for applying for divorce is simply that the couple have “grown apart”.

The number of divorces is also falling and the above evidence may suggest a trend towards separation, particularly in difficult economic times. The research also confirms that the use of pre-nuptial agreements is on the rise.

All of this is very interesting. Does it suggest :-

• People are becoming more practically minded ?
• People are becoming more self-centred ?
• A decrease in the amount of spite in divorce ?

What do you think ?

There are few more emotive or difficult areas of civil law than divorce. All too often the parties end up with relations worsened and big legal bills. Blame is apportioned to the lawyers often.

Few areas of law are more apposite for mediation to save costs, antipathy and time. this area is a classic area where “separating the people from the problem” can have real benefits.

mediation is a growing area. statistics show that if it is possible to get partries to a dispute into a mediation, there is a high chance of resolving the dispute during the course of the mediation. The difficult area tends to be getting both parties to agree, since this is a prerequisite.

We will be posting regularly on this site about divorce, family law, mediation, with latest news and case updates. We also welcome contributions from others, including relevant and authoratitively written articles, so please do get in touch.