3. Procedure Flashcards
what process = divorce for civil partners
dissolution
what is the one year rule s3 MCA 1973
divorce cant be filed before end of one year from marriage date
what does habitual residence mean
centre of interest of ones life
tbd on a case by case basis
not possible to be HR in more than one country at the same time
what does domicile mean
where a person has a permanent home there
when will courts entertain a divorce s5(2) DMP 1973
The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only [F9if) on the date of the application—
(a)both parties to the marriage are habitually resident in England and Wales;
(b)both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
(c)the respondent is habitually resident in England and Wales;
[F10(ca)in a joint application only, either of the parties to the marriage is habitually resident in England and Wales;]
(d)the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
(e)the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
(f)both parties to the marriage are domiciled in England and Wales; or
(g)either of the parties to the marriage is domiciled in England and Wales.]
what is domicile of origin
acquired at birth
what is domicile of choice
acquired on/after the age of 16
residence in a country other than origin and intention to remain permanently
what is the only ground for divorce s1(1) MCA 1973
irretrievable breakdown of marriage
what must be included with divorce application
statement confirming there was irretrievable breakdown
what is nullity
declares marriage void / as having never existed
when are marriages treated as void
where parties are too closely related
either party was under 16 at the time of the ceremony
either party was already lawfully married
when is marriage voidable
non consummation
lack of consent
one party suffered from mental disorder
interim gender recognition
bar to nullity order
applicant knowing the marriage could end, behaved in a way leading R to believe they would not seek to end it
it would be unjust to R
when is judicial separation sought
where divorce is forbidden by account of ones religious belief
when is presumption of death sought
R left home and disappears without a trace
apply under s1 presumption of death act 2013
when will courts issue POD
where it is presumed that R has died / has not been known to be alive for at least past 7 years
where is divorce procedure set out
FPR 7
which form must be filed for divorce
d8
can d8 be amended
yes without court permission until application made for CO
amended application must be served on R
docs that must be served
issued application
acknowledgement of service form
notice proceedings
when must service of d8 take place
within 28 days of issuing application
what if R is uncooperative for service
application for deemed service D11 with evidence why A things R received service
service by alt means D11- specifies alt method / to whom it can be served
dispensing with service D 13B last resort- A must set out problem and action taken to trace R
what is required after service
R must complete acknowledgement of service within 14 days of being served
can R issue their own application
not until first application has been dismissedw
