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Urgent issue of a divorce petition when freezing injunction needed or when there is a race due to jurisdiction

Date:15 JAN 2018
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Collaborative lawyer & Family law arbitrator

I was contacted by another family lawyer earlier this month who had experienced certain problems in issuing a divorce petition. The lawyer, based nowhere near any of the divorce centres, wanted to issue her client’s petition at her local court on an urgent basis owing to a forum dispute.

I explained that this was possible. Because of the problem, the lawyer took it up with HMCTS.

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HMCTS wrote to her, saying: 

'I can confirm that there has been no legal change which prevents you from issuing divorce proceedings at a local court. There are sometimes situations (such as the forum race) where issuing such an application at the local court may be necessary, even though majority of applications are now issued in regional divorce centres.'

So, armed with this, how did the family lawyer get on? Not quite as well as might be expected as she wrote to me, saying:

'After we received the (HMCTS) letter, a member of staff attended at our local court to issue, and still encountered difficulties...' 

Fortunately, the author of the letter had helpfully provided to the lawyer her mobile number. This enabled the matters to be resolved, enabling the petition to be issued urgently at the local court.

I made certain enquiries of HMCTS. Of course, back in April 2015, it published a Q&A article in Family Law which covered the urgent issue of a divorce petition when, for example, a freezing injunction is needed or when there is a race due to jurisdiction.

The relevant part reads: 

'Can I continue to issue divorce applications at my nearest centre?
There are no legal changes that prevent you from issuing to a particular centre; however we would encourage bulk users to continue to send any batches of multiple applications to the nearest centre in their region, to avoid any delays.'

HMCTS have confirmed to me that the ability to issue urgent applications remains unchanged. The Courts Service adds that, however, the actual process of submitting an urgent application will vary depending on the counter facilities available at a local family court. It explains that there are geographical differences in the counter opening times and the use of an appointment based system. It says that it is likely that if the issue of the petition is considered urgent, it will indeed be issued at the local court and then transferred to a divorce centre. It adds that, if not considered urgent, it is likely that the papers will be forwarded to the divorce centre to issue via the usual process with the receipt date being recorded on the petition. It says that, ultimately, were there to be a dispute about the urgency of issuing, this would be something for a judge to consider.

So practitioners have the guidance on this topic. What about staff at the local courts? I suggested that it might assist were HMCTS to send out a circular. I am told by the Courts Service that it has now sent out a reminder to all local courts which are not divorce centres.