Hello and welcome everybody. Very pleased to welcome you to the second session through data law on this topic on divorce, separation and nullity under the new law Safta Mahmoud. And this then is the continuing session where I'm taking you through some of the significant changes brought about to the law and divorce that came about on the sixth of April 2022. And this is something that all family law practitioners advising on marital and civil partnership breakdown matters clearly need to be aware of. So last time that I spent some time going through some of the aspects with this with you. So I spent some time looking at nullity, judicial separation separation. We spent some time looking at the online procedure. I spent some time also going through with you the position surrounding the need for change to a law on divorce. And then we looked at the introduction of the divorce dissolution and Separation Act of 2020 today. What I'm going to be doing is continuing with looking at this new act in more detail. We'll be looking specifically at some of the key aspects of this. Uh We'll be looking at the position with sole and joint applications, how they work the 20 week period, about service, about extensions of time. We'll be looking at costs and then what we mean by disputed divorces or so, I'll be taking you through some of those areas in this session and it's going to last about an hour again, this session, just like the previous one to give you hopefully useful grounding on all these areas. And we'll look at that the laws of July 2023. So in the last session, then you remember I said that with this act which got roll of sent in June 2020 majority of it was then fully implemented on the sixth of April 2022. And what this act has done then is it's got rid of all the five facts for all new cases issued from that date. You still need to establish the one grand which is irretrievable breakdown. So that's still a requirement, but you don't need to establish that through any of the five facts. So the adultery, the desertion, uh the behavior, the two year separation would consent, the five year separation, all of that's gone. OK. Party is able to make a joint statement now, that's really important. So just like a marriage is a union, you know, 22 people obviously coming into that marriage together, ending the marriage could be very much the same. So just like they went into it together, they can effectively leave the marriage together as well. So, rather than having an applicant and a responder, you can actually have applicant, one, an applicant too. So effectively you got joint applicants. So it's not that one's divorcing the other. It's just that they are both jointly decide to bring that marriage to an end, I think, and I think psychologically, I would say that's definitely, uh in the right direction in so far as that's concerned because as you can imagine, uh if you uh do uh get those kind of circumstances, then what you'll find is rather than uh you know, in these circumstances, rather than in these cases, a situation whereby even with two year separation with consent, it is amicable. You know, they're both wanting to end a marriage together jointly. The fact is one is divorcing the other, aren't they? So you still have an applicant, you still have a respondent uh in those circumstances. OK. But now through these joint statements and therefore for joint applicants, that's not the case. Thirdly, it's no longer possible to contest the decision uh for divorce. Ok. So what I mean by that is like the Owens case, as I said, where the husband decided to challenge a divorce, he wanted to defend her, not on the basis that he was saying that yes, the marriage is also broken down, irretrievably but not down to my behavior down to say my wife's behavior. He wasn't running. That was he, he was saying actually the marriage should remain. Well, that's no longer the case. If one party wants to end a marriage for whatever reason, as long as they are saying that the marriage has broken and irretrievably, then the other person is not permitted to contest that decision to defend. There's no legal basis upon which to contest the decision for divorce. Having said that there are limited ways in which one can dispute the divorce as I'll take it through shortly. There's this minimum period of 20 weeks from the start of proceedings right through to obtain uh applying for a conditional order. So once the divorce itself has been issued, then there is this, there is this minimum period of 20 weeks from the point of issue to then being able to apply for conditional order. And I'll go through that in more detail with you shortly, the 12 months remains. So section three, subsection one of the MC A in terms of waiting 12 months before you can divorce, that's still the case. Although you can still go for separation, judicial separation and annuity. And remember for those, you don't have to wait for 12 months and there is still the retention of the six weeks and a day between conditional order which has replaced the green and final order, which has replaced final order. So that provision is still intact there. So last time and I spoke about divorce in terms of either it could be a sole application or joint. And then in the first instance, they'll be applying for uh a conditional order and then once the 20 weeks is uh gone thereafter, uh then uh you'll be applying, so they'll be applying for the divorce once the 20 weeks is up, you can then apply for conditional order once that's obtained and six weeks and a day later, one can then apply for that to be made final. So as I mentioned, judicial separation in the case of married persons and separation is still permissible. So section 17 of the MC A is still intact uh under this new provision. So either or both of them may apply to a court for an order for judicial separation. And again, this could be done on the basis of a joint application. So both of them are jointly applying to be judicially separated or in fact, it could be a sole application. So that's also possible. Similarly, with civil partners, it's permissible for the civil partners then to uh apply for a dissolution of the civil partnerships. So section 44 of the Civil Partnership Act 2004, which is Dissolution of Civil Partnership, which is broken and has been amended so that they would then need to be the application for dissolution. And it could be either by the applicant or applicants as the case may be ok. And that's on the basis that they are seeking for the uh civil partnership to be dissolved. Uh And uh the statement which is really confirming that the civil partnership has broken, unreliably, the court would take that as conclusive evidence that the civil partnership has broken and irretrievably and therefore to then go on and make the dissolution order. And when it comes to nullity, that's still preserved under the new legislation as well. So in the first instance, if you're going for a nullity order, in the first instance, then that would be uh a conditional order. And uh it may not be made final until the prescribed period. And it's the same with uh the uh position with a presumption of death order. So some of you may find that presumption of death application has been made. This is whereby uh you've got a presumption of death Act 2013 where say the uh your client is instructing you to say that they have not had any contact with their husband or wife or civil partner. Uh Now for seven years or more, or there's other reasons to suggest that they may have passed away. And that's where they made and seek a presumption of death order uh declaration from the court, which then declares that it is presumed that that person has died. And if of course, you get that order, then that automatically also ends the marriage or so with a presumption death order. In the first instance, it's a condition order that's made. And then after the prescribed period, it can then be finalized thereafter. Ok. That's so a period of six weeks from that point. Now, the other thing to bear in mind having said that is this the 20 weeks that I've mentioned. So that's the 20 weeks uh from when the application is issued before you then apply for conditional order that only applies to when you're seeking a divorce of a marriage or dissolution of a civil partnership to 20 weeks between, it should apply for condition or it doesn't apply to nullity proceedings. OK? And in terms of joint applications or conditional for divorce or dissolution or for judicial separation or uh separation, uh this is where you won't be applying, of course uh for uh the deposition with say uh a joint application for nullity, of course, because as you can imagine, you know, one of the parties may well be saying that they were forced into marriage for example. So you're not going to be applying for that jointly, those applications. Uh You'll find uh in, in that regard uh in, in most cases, as you can imagine, rule 7.9 of the F pr does provide an application condition order may be made by the applicant or when the joint application by both parties or in the joint application, that's perce by an application by one party. And obviously, of course, only by that party by its very nature. OK. Now there are other provisions as well which we need to be aware of which have remained intact as a result of these new changes in the law. So, for example, uh well, firstly, some of you might remember under the old law, we used to have uh if you were divorcing somebody on five year separation under section 12 E, then there was that defense under section five of the MC A 73 which was the defense known as the Gray Financial or other hardship. What's wrong in order circumstances that defense has gone obviously under a new law because there is no section 12 E, are you a five year separation fact anymore that you'd use for cases under the new law. But the one defense that does remain is that under section 10 of the M CAA section 10 2 in particular. And this is a provision where both under the old law and new law. This is where when the court is considering an application of divorce and uh or dissolution of a civil partnership and a conditional order has been granted in favor of one part of the marriage or conditional in favor of both parts of the marriage. But one of them has since withdrawn from the application that in these circumstances if the respondent has applied to a call for a consideration of the section subsection three of their financial position. And this is where this comes in. OK. So the way this works is this, let's say you were for acting for the wife and the husband has lodged a divorce. Ok. And so he's lodged a divorce. He's got condition in order. Now he's looking to apply six weeks and a day later for that to be made final. Now this is where if you're for wife, she may say to you look, he's made no provision towards me financially. He's not opened up the doorway at all to even negotiate on the finances. And now if he divorces me, well, what's to say that once he's got a divorce, he's con continue with anything to do with the finances, they may just completely uh failed to play any part at all in that regard. So how do I prevent this? And what he has made provision for is just simply not enough. So this is where she can then put this defense in under section 10 2 of MC A. So this is still provided for as a respondent in these circumstances and in making this determination, the court must consider all the circumstances. So they got to consider the order circumstances in particular. They got to consider both her and his age, health, conduct their earning capacity, their financial resources and financial obligations of each other towards a marriage. So you can see this requires one to look at the financial position of both women considering that defense on the section 10 2. Uh And then you've also got to take into account like say specifically financial position, the respondent and like and what that to be after the death of the applicant should do, should that person die first? Ok. So what this does, what this provides for is a circumstance where say, let's say you got a husband and wife, they've been together for many years. So the wife has been a homemaker. She's looked after the household, looked after Children, looked after her husband. She sacrificed her career. And while he's excelled in his career, he wants to divorce under a new law, he doesn't need his wife's consent. He doesn't need to blame and all the, all those arguments are gone now. So she can't defend the decision for divorce anymore as we said. But if he was to divorce her and if he hasn't made any provision towards her financially or what he has made already is insignificant that this is where she can put in this defense on a section 10 2 on a basis that take into account both he and her financial position, what he has put forward or the fact he has, he hasn't put anything forward in terms of the finances is such that it cause that um the difficulty in so far as then not being in her interests and that's where she can actually hold up the holding the handing down of the final order until such time as provision has been made. And essentially what this is, this could do is this could hold up the handing down of the final order until such time as the court has determined their financial position. And that may well be why by whatever financial application that's lodged and unheard and determined. So it's very important to bear this in mind. There's also the other provision under section 10 A of the MC A which remains intact and this is proceedings after decree on our conditional order in relation to religious marriage. This ties in with the divorce, Religious Marriage Act, uh Marriage Act, Marriages Act of 2002. And some of you will be aware that this provision specifically is there. Uh and it came into effect where uh it was an issue that was raised particularly as affecting uh the situation with divorces involving a couple who uh will be practicing uh uh Jewish family and uh under orthodox Jewish law. If the get with the Jewish divorce document is not obtained, uh and that needs to be obtained by consent by both of them. If that's not obtained, then even if you were to do the civil divorce for the parties. So that let's say you're a wife and you've done a civil divorce for her and hence she's free to remarry. Of course, the problem is on the Jewish Orthodox law. The problem is that she's still obviously regarded as married and unless she obtains her husband's consent to get to the best in which a Jewish divorce court they will remain married under Jewish law. And the difficulty is even if she was to remarry under English martial law, she's permitted to do so. Now that she's divorced under Jewish law, uh, any, uh, new union is one where she's regarded as not, uh, entered into that second marriage because she's not free to marry. She's treated as being, uh, really living in, in, in a, in a marriage which wouldn't exist in that regard. But secondly, if she had any Children from that second marriage, they would be regarded as being born out of wedlock. And the stigma that she and her Children would get in. That second union is one which would involve her being shunned in the community, potentially difficulties for her and her Children going forward. So to assist her with this, what you can do is if you're doing a divorce for her to civil divorce, what you can do is you can put this bar in to prevent the divorce being finalized or to prevent the final order being handed down until such time as the religious divorce has been pronounced. So you can actually put this in and this doesn't just apply to uh cases where a couple of Jewish, this could apply to any religion that they have a religious affiliation. And particularly if it's found that the civil divorce does not end the religious marriage. So again, it's important to bear these provisions, they're still in place. And therefore they can still be used under the under the new law. So that provision is still there. Now, in terms of the defense under section 10 2, that defense is still available, like I say, and it may well need to be used in certain cases. So the case in 2016 was one where this was used and this is what her husband applied for decree absolutes under section 92 of MC A IE after three months. So many of you will know how this works. Where if say I was for the wife, we get decree nice as it was now conditional order, she can apply six weeks and a day later. But she may well be advised by me not to apply at that stage because there are a number of problems she may foresee if she does apply for a final order at that stage. For example, there could be problems with entitlement under her former husband's pension. If he was to die thereafter, without his older finances, she would not be classed as his widow. She would potentially lose out on any thing he may have left in his will because any former spouse won't benefit. Uh Also with uh she might lose her right to occupy the family home. For example, if the house is in husband's name, she loses that right under section 30 of the Family Law Act 99 6 upon signed order and it can affect their pension entitlement as well if you, if your app applies for fine order. So there are a number of reasons why you would advise her not to apply for order. But this is where the husband can apply. In fact, he can apply for fine order after three months. And if he does, he'll apply into section 92 of the MC A. And that's what her husband did here. He applied on the 92. But then wife said, look, he's a million. He's a billionaire. She alleged serious financial disc nondisclosure on his part. And she said, if he was to get final order, then it would mean that he just won't play any part at all in relation to these proceedings. And, uh, the prejudice you were then faced by the pen of the decree absolute would be such that he would just play no part in those proceedings at all. So the court did say, well, what we're gonna do is we're gonna allow you to therefore hold up the divorce until such time as the, um, finances are therefore deterred. And even though at this, at this stage, in a, you can see in this case, the defense seemed to be limited to those complex financial cases where there were exceptional circumstances. But now that, uh, this defense is still available under a new law and now that there are very limited ways in which one can dispute a divorce, it may be just a matter of time before. Uh this section 10 2 defense is also used in your average wealth, low wealth cases also rather than just a big money type of cases. So what do we mean by a disputed case? Well, this is where the new part seven of the F pr covers this and a disputed case isn't the same as a defended case. Remember defending is where you're saying you're defending the marriage broken down that, that the marriage ending on the basis that the other party is saying that the marriage has broken down irretrievably for the reasons. They've given a disputed divorce is different. This is where your, your client has found an answer. Basically a statement disputing, for example, the validity or subsistence of a marriage or civil partnership or the jurisdiction of the court to entertain the proceedings and it has not been struck out. So it could be where say I'm for the husband and we're disputing a divorce on the basis that we are saying that the court doesn't have jurisdiction ie because either the parties are not domiciled here or they're not habitually resident here for the requisite period of time. We may be challenging validity on a ba basis. We're saying the parties have not been made for long enough. So section 31 has not been met. We may be disputing on a basis. We may argue that it's not an invalid marriage. So what they entered into was not invalid marriage it was a non for example. So we may be disputing the validity of it that way. So that's where you're challenging those aspects, ok? Or it could be, the respondent has filed an application matri one or a partnership order and according to the rules and neither party's application has been disposed of, of which and of which no matrimonial a partnership order has been made. So that's where the respondent may with permission filed their own matrimonial application and that's not been disposed of. So that in limited situations may well be the case. So that's where it makes the divorce disputed. You can see that's very different to what we used to have under the old law in terms of defending the divorce. So under the new provision, then you've got the amendments that were made uh to the family procedure rules. So you had the family procedure amendment rules of 2022. These apply in England and Wales, these then came into effect on the first of April last year. So they came into place a few days before the uh the new provisions came into force. And some of the aspects are that the terminology has changed also, of course. So this amendment to 2.3 0.3. So in terms of the terminology that's changed. So for example, uh you've got the words decree, which we have now got rid of. So we don't use the word decree anymore. So we don't say decree of divorce. We simply say divorce order. We don't say decree of nullity. We say nullity of marriage order. We don't say decree of Js judicial separation. We say judicial separation order petition was supposed to have changed the word application many years ago, but it hasn't, hadn't quite been achieved. But now we shouldn't be using the word petition. So such as you know, divorce petition, it should be divorce application and conditional order, which was the term where you were only limiting to civil partners is now across the board to also include married persons. And therefore that has replaced decree, I find order which was limited to be used in the case of civil partners only has now also been extended to cover married persons and that has replaced decree absolute. OK. Now costs the other thing you'll notice with the new law uh is that in so far as the position would cost is concerned, this has changed. And when the new law came in, we did have this guidance from the president of the family division, Sir Andrew mcfarlane, this guidance was handed on literally a week before the new law came in. So this was the president's guidance about divorce dissolution, separation that can cost in these cases. And what his lordship said was that in the great majority of cases including joint applications when application is then going to be for divorce, dissolution or separation or judicial separation, it's not going to be disputed and the parties will have conducted the proceedings in a reasonable manner. So in those circumstances, a cost order would be inappropriate but where divorce or dissolution is disputed. Remember that could be where for example, somebody is questioning the validity of the marriage, for example, or whether the courts got jurisdiction, for example, as we mentioned. So if it is disputed, there may well be a separate hearing to terminate issue. And in that case, if the defending party is unsuccessful, the court may then consider whether pursuit or defense was unreasonable and the court determines it was that it may order that be unsuccessful. Defending party should pay the cost of the successful. So you can see where somebody may, you know, deliberately say that how I dispute this on a basis that it's not managed. There's a hearing on that, there's evidence called there's obviously cost on all parties sides and if one looks at how reasonable they were in running that argument and if it was found in unreasonable, then a cost application may be sought and here, then they can make a cost order in favor of the successful party. So there is that provision so that is there. But then the other type of situation where you may want to think about costs is set out within our practice direction. Seven A. So this really helps us to understand the position with costs. So the standard case, which is basically where it's not disputed. If you are in those cases seeking costs, then an application should generally be made no later than the application for conditional order but must in any event to be made before the data, which condition order made final? So you might think, well, how am I going to claim costs in a standard case if it's a disputed case? I accept that and I may well be a hearing and there could be costs and consequences there. I accept that. But in a standard case where somebody is not disputing a divorce, why am I going to be seeking costs there? Well, I would suggest you may get that in cases whereby the respondent is not disputing a divorce. But actually, they've been quite elusive in the manner which they've conducted the proceedings. For example, they've deliberately availed service. They've made it much more difficult and awkward for the applicant to effect service upon them. The applicant has to, has had to use Bailiff's service or maybe process service has had to spend a lot more time and energy and lawyers costs and other process service costs, ineffective service. Finally, they have managed to get the respondent served but it, you know, it took much longer than they had wanted it to. That's where you may see cost perhaps. And if so if you look at this practice, section 78 says that any application for costs needs to be made on an application notice. So that's the D 11 form that I mentioned in the last session. So you'll have to do an application A to D 11 uh or in any written evidence and support. You need to set out the grounds upon which you're seeking costs. And if an order is, so you need to provide a summary showing how the amount has been calculated. So that's why it's very important for you to be able to summarize the amount. So that's where your cost, for example, may be able to calculate that for you. You should be able to do that as part of your work in progress, the work you've done on your file to show how that amount was calculated. And this is where once and if you are therefore seeking costs in these circumstances and this is where the applicant must serve the application notice, unwritten evidence within seven days after it's been issued. And you're gonna file a certificate of service within seven days thereafter. And in paragraph 5.4 any respondent who opposes or making of costs or disputes, it must then within 14 days thereafter, uh file their witness statement setting out why they oppose and how will the court deal with it? Well, paragraph 12.5 says the court can deal with this application cost on paper which obviously ties with the overriding objective. But if they need to and feel they need to hear from the parties, they can direct a hearing and then they can direct a hearing there. Ok. So we can see that provision is in place there, ok. As I mentioned, one of the key things with this new law is there is provision therefore for a court to deal with both sole and joint applications. So that provision is there. And this is where earlier last year we had two information packs provided by uh H MC TS. We had firstly an information pack from the M RJ in February 2022. And then we had another one on a day that the new law came in. So that was the sixth of April 2022. And when the first information pack became available, uh this provided that sole applications can be made by litigants in person or by a solicitor on behalf of the applicant. Ok. So it could be that uh let's say you're instructed by a client uh who is going to be eligible for legal help level one. And uh you may then be able to get them on to that level of funding. In which case they are technically a litigants in person. So they can apply uh for divorce. They can use the paper version if they want to or they can go on to the H MC TS website and then they can apply as a citizen and you can assist them with that if you wanted to. But where the applicant is represented, ie they're not gonna be eligible then for, uh, being a litigant person. So they're not gonna be exempt in those circumstances. They're not gonna be on level one legal help. Then if you're doing the divorce for them, you'll be representing them. And this is where you must use a digital service. So you can't do that through paper. All right. Well, like I say, if the litigant in person applies, they can either use the online or can use the paper version of ad a if they want to. You've also got joint applications. Ok. So that's where both of them will then be applying for a divorce or dissolution or judicial separation. Ok. And as I mentioned earlier, they will be regarded as applicant one and applicant two rather than the applicant and respondent as in soul. Ok. And joint applications for divorce and dissolution can be made digitally on paper and can be made by litigants in person or by solicitor, solicitor on behalf of one or more of the parties. Ok. So very important to bear in mind that uh the provisions do then allow one solicitor to, well, the provisions do allow for firstly for joint application. So I could act for say applicant one, you could act for applicant number two. That's possible. And we can do that. If we're representing our parties to clients, then we can then do that through the digital service. But the provisions also allow one lawyer to actually act for both applicants. That's also possible. All right. And in fact, resolution have put together a working model as of late last year, which allows this to be done. But you obviously need to bear in mind issues of a conflict before you decide to act for both. So effectively, you're acting for say, husband and wife. So you got applicant, one, applicant, two, you're acting for both of them that is permissible under a new law. But all that, it's gonna be very limited with client lawyers will be dealing with that in those circumstances. And uh this is where the M RJ pack of February last year does say that we either both of joint applicants have instructed a solicitor. The application must be made by a solicitor to the digital service unless one solicitor is acting for both. Ok. So if I was acting for applicant one, you're acting for applicant two and we would take instructions on my clients that they're paying us privately and that's where we've got to use a digital service for that. Whereas if I was acting for both applicant, one applicant two, then I can use the paper version of that. And that's where I would need to be sending in. Uh as I mentioned earlier, the certificate regard to reconciliation certificate as well. Now when you do have joint applicants, they need to agree between themselves as to who's going to pay the fee. Only one fee is payable. They can agree between themselves. So, app on a digital service applicant, one will pay, but then they can agree between themselves to whether applicant one pays the whole lot or whether they share it between themselves. Ok. Joint applicants can apply for help with fees if both applicants have little or no savings or if the uncertain benefits are no income. But in the case of joint applicants, if one of them is fees exempt and the other is not, then the fee is payable. Ok. So obviously bear that in mind. So they're only gonna be fees exempt if they both are not just one of them. Now, as I mentioned earlier, there is there is there is this minimum period of 20 weeks from when the court issues the application to one then applying for conditional order. So this 20 week period, so that's a new provision that's come into effect under this new law. So this 20 week period and in so far as that's concerned, this starts from the point of issue of the application. It is possible under the act, it is possible to apply to shorten a period in a particular case or akin to apply to shorten that six weeks period between condition order and final. So even though the court can't extend a 20 week period, it is permissible to apply to reduce it or be it the circumstances of that as you can imagine are going to be very limited and I would suggest that the type of situation where you may get that is, let's say you're acting for a client where say they are seeking to divorce, say they are terminally ill and they wish to really do their divorce before and, and really resolve all the other financial matters before they pass away. Now, in that situation, 20 weeks, obviously a long time, it's five months and they may not have that time, They may not have that time because they are terminally ill. So in that kind of situation, I would suggest you may upon D 11 apply to a court for certain amount of reasons why you invited a court to shorten that period in those circumstances. So you can imagine that no doubt will be very limited but exceptional circumstances where the court may be asked to shorten that period in that regard. Now that 20 week period should be used for a period of reflection between the parties. So they should be able to reflect on what they're pursuing. But also that time should be used to enable the two of them to ensure that for example, issues of a service are dealt with, upon to respond and also to negotiate between them themselves. So that for example, there could be discussions surrounding the Children, there could be discussions surrounding the finances. So that by the time the 20 weeks period has expired has come to an end. You should be looking to not only apply for conditioned order but also looking to uh submit a draft cons consent order for consideration by the court. So that that could then be uh approved by the judge at the point of handing down the conditional order as well with a view to an implementation thereafter. So that five months should be used also for that period of purpose to enable them to communicate between themselves over the financial position. Now, for those of you then who are dealing with divorces under a new law, this is where you need to keep on track with the uh procedural guides which are updated and made available by H MC TS. So the last major update was on the 30th of December 2022 by H MC TS. So you got this procedural guide there and these guys then set out the steps that one needs to take them to use the online services uh for divorce. Uh and it sets out the procedure then in terms of the various steps that people take uh dealing with the divorce going forward. So in terms of submitting, for example, a sole divorce under a new law, submitting joint applications where say you got solicitor, a litigant in person on the other side or you got uh say your applicant to and you got solicitor litigant in person or you got joint applications, for example, um on also archiving a draft divorce case where you may have started it you haven't pursued it because the client has decided not to pursue any further. At that stage, you can archive it and then un ach it afterwards if needs be. Now, the position with service has also changed under new provision. So that now you've got part six of the F pr where the service rules have been amended. So this is where depending on who the respondent is and where they are residing, it will either have to be, it can either be the call to arrange a service or the documentation upon the respondent or indeed, it may have to be the lawyer themselves who arranges service, but it does depend on who the respondent is and where they reside. So what I mean by that is you can often invite the court to arrange service upon the respondent for you and that could be done by way of uh serving the response lawyers. If the representative not serving the respondent at the address given, you do need to provide both an email address if available for the response as well as a postal address. But there are certain situations where in fact, you're going to need to be arranging service yourself, not you personally, but it'll be what's called a solicitor service uh as opposed to court service. And those situations are one if the person resides, if to respond that he resides outside the jurisdiction of England Wales. And secondly, you have to respond and he is a child because of course, even though the law on marriage has changed, uh, in that you have to be minimum age of 18. Now there will be cases where people may well be married prior to that who may be 16 or 17 and possibly there's a divorce. So if the child, if the person on the other side of his bon is under 18, you need to arrange service upon them yourself. You can't ask the court to do or if they're a protected party, ie uh you got a situation where maybe they have a deputy appointed to a court of protection or maybe they have an attorney, pursue it to a lasting power of attorney. For example, then you need to arrange service upon the deputy or the attorney. Uh in terms of service, the court, like I say, can serve through email uh and postal address, they can send a notification there. So when you do fill in ad a, you do need to be providing an email address for the respondent as well. And normally it's the kind of usual email address for them and preferably not a work email address. Uh but if that's the only one that's available and they provide and that may be the only one that can be used. There's various methods of service, of course, or post and DX, as we've said, there could be personal service in appropriate cases. Sometimes you may have to use court bailiff and like I say, by email as well, so there's different methods of service depending upon the uh the circumstances that you've got. Ok. And can he, can he still serve upon the solicitor for the respondent? Absolutely. So you got route 6.11 F pr, so it's possible for service upon a solicitor for the uh respondent. So as I mentioned earlier, when you are filling in ad eight, you'll be providing details of a respondent and their lawyer if they are represented and their lawyers, details and confirmation that they are instructed. And that way the uh the service could be uh upon the uh the the responses legal representative. That way now if you are having to serve yourself or you want to serve yourself rather than the court. So if you're electing for solicitor service, because you need to or you want to, then in those circumstances, there are new time limits now that have come into play uh in so far as the position uh with service. So there are these time limits that have come into effect. So this is route 6.6 a of the F pr. So where the applicant serves the application, then they must complete the step required in the chosen method they're using before 12 midnight uh on the day, 28 days after the date of issue. So basically, you've got 28 days to affect service. So this is therefore providing these time limits, which was some of you may recall was one of the issues that was raised in this case of thumb and thumb in 2018 by the court of appeal. Because in that case, the husband argued that uh the wife had lodged her divorce, not here in England or Wales, but in fact, in Germany uh and uh where he was and she said that he served her some four months after the issue. And she, he said that it was a strategically lodged divorce so that she issued a divorce here. But she served in, in uh Germany uh some form form a bit months later. And he argued that she did it strategically sort of English and Welsh courts with our jurisdiction. But of course, it actually there's no requirement or it wasn't to serve within any particular period of time. As long as we are satisfied, it wasn't done strategically as long as we are satisfied. She did try and serve you here on the fact she did, but she gave the wrong address that came back on delivered and she had to try again. So it's not that she was deliberately evading service. But now under the new law, you can see that if you are 40 respond to these circumstance applicant in these circumstances, you are required to serve within 28 days. So there is that requirement, you can of course extend a period for service. So you can apply for an extension of time to do just that. But this must be specified uh within the rules and you do need to apply for that extension of time. So to give you an example, let's say I was, I was responsible for doing the divorce for my client and say the respondent resides in Scotland, for example, then that's where I would have to elect for solicitor service because the respondent resides outside England. The well, so we would have to get, get the application issued. And from that point, we have 28 days to serve. Now, let's say the respondee has been very difficult and awkward in accepting service. Uh We've got uh say a postal address, one but not an email address. So we're trying to affect service. It's coming close to the 28 days. This is where I should be applying for an extension of time two and so beyond that. So I should be applying under 6.6 B sub paragraph 6.6 I should be applying and 6.6 B sub paragraph four is what the court will take into account in considering my application. So they'll take into account the fact that the court may have failed to save the application because they may have failed to do so. And then I'm taking responsibility if I am electing, they have to look at what steps the respondent took. So the applicant took and how prompt they were in taking those steps. Ok. So therefore, very important to bear in mind that you may well need to apply for the extension of time in terms of service outside of jurisdiction. Uh Permission is not required to serve outside the jurisdiction. So that remains under the existing laws we had under the old law. So you'd have to seek permission to serve outside the jurisdiction. But that time period of 28 days still remains. And this is where the rules do make the distinction regarding service on a party in Scotland, Northern Ireland and outside the UK in that regard. But like I say, you can apply for an extension of time like I've mentioned, ok, then you got part seven of the family procedure rooms as a result of the amendment rules that came in. So part seven covers application interpretation. So the changes in terminology that I mentioned earlier, Chapter two covers rooms about proceedings and then there's a position with the state of reconciliation. So as I mentioned earlier, if you know, if you're doing a divorce to online divorce portal, then on the D eight itself, there's the provision for you to confirm details as to reconciliation, whether you've given that advice to them and who you referred them to. But if you're doing a paper application, which you may do say in the case of uh say a joint divorce, we're acting for both of them. And therefore you have to do that on paper, then in those circumstances. Uh in terms of the certificate with regard to reconciliation, you will then be uploading that on the uh on the portal. So you will be sending that in alongside your paper application there so that can be done there in so far as that's concerned. Ok. Now once the responder has been, has once the responder has received the papers, so they received a divorce application and this is where they'll receive the acknowledgement as well. Ok. So they've got the D A the divorce application, they'll also receive the acknowledgement about the service and they are required in most cases to return this within 14 days beginning with the date in which they received the paperwork. Ok? If they do get served outside of jurisdiction, they do have a little longer. Ok. So it depends on whether where they live is a country which is a member of the Hague Convention otherwise, but they may have a little longer, not much longer. It's 21 days if I recall and 28 days in some cases. So it's not much longer. They should return. They should of course complete the acknowledgement to say when they received it and where they should be signed by them or the representative including their address for service. And they also need to indicate on there whether or not they intend to dispute the proceedings. Remember on the D A, you're no longer setting out the position, running costs on ad eight, you're only gonna be seeking costs at a later stage at the point at which you're seeking conditional order. Ok? So like I say you got this 14 day requirement, ok? Let's say you're for the respondent. The respondent says to you, look, I've received the acknowledgement. I don't, I can't defend a divorce. I accept that other than those limited basis that I mentioned the section 10 2 which I mentioned earlier, which is you may then defend the handing down or defined order after the condition order is handed down or the section 10 A uh in relation to religious usage. So you've got those provisions still intact. But if a respondent says to you, look, I don't want to, I know I can't defend a divorce, but I do want to dispute on the basis that I'm questioning the validity of the marriage or we haven't been married for long enough that the 12 months hasn't been met or I don't believe that the court's jurisdiction based on domicile and or habitual residence. So this is where if they are gonna be disputing the divorce, this is where they are. Don't expect you to file any answer within 21 days beginning with a date by which the acknowledgement is required to be filed. So because they've got 14 days ordinarily within which to find their uh uh acknowledgement they love then another period of time thereafter within which to foul uh their um their their answer thereafter. So in fact, they've got 21 days for that. So therefore the total amount you'll have from when they have received the paperwork is 35 days ie the initial 14 days to return the acknowledgement service and then another 21 days thereafter to do the answer. So the total they've got is 35 days to find the answer from the service upon them of the divorce papers. Ok? And in the case of divorce and dissolution, uh what you'll find is that 20 week period is there as I mentioned? Ok, so this is route 7.9. So paragraph one, so that uh once an application has then been made to court for you to consider the making of a conditional order. Remember you have to wait that 20 week period before you can apply for conditional order. Uh unless the court expedites that which is going to be exceptional. And when you are applying for conditional order, the court then has to be satisfied at the time for finding acknowledgement has expired. I either 14 days. Uh and the time for finding of any answer has also expired out in the 21 days if they gave an indication that they wish to dispute. Ok. So this 20 week period is there, remember, the purpose of this is to enable them to use this for a period of reflection and allow them to really try and resolve matters both in relation to Children if appropriate. And also to see if they can certainly narrow down issues and see if agreement could be reached and matters could be discussed in so far as the position uh with the finances, they may be able to get a financial consent order drawn up. So that's where you got those provisions there. So in terms of applying for conditional order, this is where uh there is then this updated guidance which was updated on the 14th of feb this year. So this apply for conditional order in the case of a sole application. So you got the link there. So you, you do need to be registered with my H MC TS to do this. Uh They'll respond within five days with any queries that you have now since the new law has been in place, which like I say came into effect on the sixth of April last year if you did get lodger application and it was issued on the sixth of April last year. The earliest date that those lawyers could then have applied for conditional order was 25th of August, which was basically 20 weeks from the sixth of April. So that was the earliest date for when this new law came in that you could apply for conditional order. So you can apply for condition order, like say for 20 weeks after the point of issue either when uh and you need to confirm that uh the court has received the service or certificate of service if you've had to serve to say Bailiff service or process over otherwise. Ok. So you need to confirm that yes, the service has been returned or, or you have managed to serve through other means, whether it's Bailey service or alternative service or the court has deemed, or dispensed service or the court is deemed from the circumstances that the respondent has received to pay for a court. You may have applied for dispensation on the basis that the uh the respondent uh cannot be uh be traced. And the history tab will show that the case awaiting conditional order. You, you'll apply for draft conditional order. You can amend that you would then submit and the legal advisor will consider your application and you should then be getting an entitlement to with a date and time for the conditional order hearing. Now, of course, under new law, as we said, it's also possible to apply as joint applicants as we said. So that's perfectly permissible. So once, once that 20 week period has gone and you've had the service returned by both parties. In that case, in a coin case of a joint applicants or certificate service or you have dispensed your service in any other means or, or service. Then this is where both of them need to apply for conditional order. Ok. Now what's important here is this, let's say I was fabricant one. You're fabricant too. Uh What happens is we complete our requisite part of DD eight that's submitted. Both parties will then receive that. And they need to reply to say they've received this. Then once the 20 weeks has passed both of them need to then apply for, for a conditional order under the form D 84. So the both of them will apply in that circumstance. But let's say my client applicant, one still wants to divorce, but applicant two has changed their mind and doesn't want to pursue it. Applicant one then have to wait 14 days for applicant to to provide their response and say yes, I also want this condition order to be granted, but because they don't want that, they don't want to pursue it. You still have to wait your 14 days. And then that's where after 14 days, applicant, one will be able to apply to convert that joint divorce to a sole application. So you can see at that stage, this can be done. And this is also the case if for example, uh say you've got to the stage as far as final order. And um applicant two, for example, doesn't wish the final order, then an applicant will have to wait you 14 days before they can apply to convert that to a sold application. So that can be done. Ok. So that's that provision there. And in terms of an end conditional order, the court will uh certainly provide a conditional order. You receive an email and it will tell you the date and time of a conditional order hearing, your client wouldn't need to attend that hearing unless like I say, it might be that they are claiming costs at that stage and the court can then list it for a hearing if need be, but normally parties would not be expected to attend the conditional order hearing. Now, this is we also in, also in February this year, there was guidance provided in terms of general applications, alternative service and deemed and dispensation of service. So that D 11 that I mentioned earlier, you might find that this is going then gonna be used for other types of applications also. So apply, apply to expedite a divorce such as reducing that 20 week period. As I mentioned, submitting a divorce without a marriage certificate, finding an answer at a time. People may want to do that, seeking costs. As we said, serving, seeking permission to serve by alternative method or maybe amending, applying to amend a judicial decisions. So you can see there's other purposes of the D 11 there. So alternative service applications could be where let's say the only method of communication with that person is through, say uh email for example or through social media. So you may then seek permission to serve them through that method. So you do a do 11 with a stamp to support and you'll be invited to the court then to give you permission to serve the respondent through that method. So that may well be possible. Let's then say we've got to the point at which we can now apply for final order. OK. So we can now apply for final order. So you got this guidance which was also recently updated on the 14th of February this year. So you've got a link there. So remember, you can apply for final order six weeks and a day after the conditional order has been granted. Ok. But remember for the reasons I said earlier, you may not apply at that stage. You may wish to continue to negotiate on the finances and then do too. There is the 12 month rule. So if you got your conditional order and as long as you apply for final order within the 12 months of that, that's called in time application. Ok. But if let's say the condition order is handed down today, if the applicant doesn't apply six weeks and a day after today, then a respondent can do so after a further three months. So that provision under section nine sub paragraph two of MC A is still relevant and when parties are able to apply for final order, they will receive a notification to say they're eligible to apply for this. Ok. So you could also do joint applications as I mentioned earlier. Ok. But if let's say 12 months has expired. So let's say you've got a conditional order granted and both parties are negotiating on the finances or say it's a case where they are attempting a reconciliation and then you do decide to apply for final order. Say 12 months later, you will need to then uh uh basically write in to explain why uh you don't apply within the 1st 12 months. So that is required. Ok, just like with a conditional order, if say, applicant, one still wants to get the final order. But applicant two changes their mind. Then it's only after 14 days. Uh applicant, one can then in those circumstances ask to switch it to a sole application. And before the court makes the conditional order final, they do need to be satisfied on a number of factors ie they gotta to be satisfied that that six weeks and day has passed. Uh they got to be satisfied that there's no application to rescind uh the conditional order and that's not pending. There's no appeal against to make another conditional order. No order has been made allowing for an appeal. Ok. So you can see before they hand down the final order to got to be satisfied that these matters are intact. Also, of course, the court has to be satisfied that there is no application asking the court to consider their financial position of divorce. Ie the court's got to be satisfied. There is no section 10 2 defense that I mentioned earlier or that section 10 A defense slightly relating for the court to be satisfied that the other party must cooperate if the marriage partnership is resolved in accordance with the religious usages. So there's that ok, so you've got to be satisfied that those key provisions are in place. Hence, there are very limited grants upon which you can then prevent the final order from being granted. Once uh you've got conditional order handed down and like I said, a 12 month provision is there. So if they were to say, continue to negotiate in the finances or attempt to your reconciliation and then say you're applying for final order and more than 12 months has passed by then, that's where you are required then to uh make your application. But it does have to be accompanied with a statement stating why the application was not made earlier. So that provision is there also. And uh as I say that defense under section 10 A is still available there. So very important to bear that in mind as I mentioned. And that can then hold up the divorce and for it to be finalized until such time as the uh the religious divorce has been handed down. Now, in terms of archiving the divorce, as I mentioned earlier, that that is of course permissible. So there was this guidance that was made available on the 30th of December last year. Uh so that you can only archive uh a case that hasn't been submitted. Uh And you should a archive an unsub a case only if your client no longer wants to proceed with a divorce. So you can actually archive it and then you can un archive it. For example, if they decide to reopen it and they do wish to continue with the uh with the divorce. So you've got that provision there if needs be so sole applications are available obviously. So the portal as we said, OK, and that's where you'll be. If you're representing a client, you have to do that to the digital service. Joint applications are of course available as well. So you got your applicant, one, your applicant two that I mentioned earlier. So that provision is there and you'll be doing that through the digital service. But remember we said if you're acting for both of them, applicant one and applicant two, then you would be doing that through the paper process at the moment. And there was this information pack available as of the sixth of April 2022. And what this did is this provided us with a lot of the forms that are available. Uh So the D eight form, the application for divorce or dissolution, the D 10 which the response uh the uh response to divorce or dissolution, the D eight B which is the answer uh the D 36 which is application for uh conditional made final uh and uh D 36 A for example, lot of conditional to be made final join to so on. OK. So there's a number of forms there that some of you will be familiar with. OK. And there's also the Minister of Justice Pack also provides some other provisions. So for example, if you're going for judicial separation or separation, you got to continue using a paper application for that uh application for Js can be made solely or jointly nullity applications uh must continue to be made using the paper application process. So that's D A nine dan form joint application and not permissible formality proceedings. And you've got to use uh as we said, a digital service in most applications for divorce or dissolution. So there's that provision there as well. But uh as we said, if you're acting for both applicants in a joint, then you would use the paper, uh the eight and litigants in person. They've got a choice either to use the paper version or the digital. OK. Right. So there we are. So that brings me to the end of this session. So you can see the new law lots of change. Obviously, it's been in place now for a year and two months. Uh So obviously a lot of change, uh Some of the unanswered questions that we had at a time when the law came in have now been addressed. And you can see definitely it's uh it's, it's a step in the right direction so far as this new law is concerned and really it will be a matter of time before we see how this system fully been embraced, embraced in the way in which we do family law cases uh going forward. So, can I thank you very much indeed. I hope that's been a useful session for you both today and also the uh the previous session that we had. And uh I look forward to speaking to you next time. Thank you very much. Indeed. Bye for now.
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