Sofia Santos was recently instructed on a case in which her client wished to making an application for dismissing a divorce application, on the grounds that the party who had applied for it had not progressed their application to the conditional order. It is clear that this was a scenario that was envisioned, as Practice Direction 7A 5A.4 of the Family Procedure Rules 2010 ‘FPR’, states clearly:
Where, for example, an applicant has applied for a divorce or dissolution order and the application has not been pursued, but has not been dismissed or withdrawn, the respondent would require the court’s permission to make an application for a divorce or dissolution order in respect of their marriage or civil partnership.
However, over the course of the hearing, it became apparent, to Counsel and the court, that there is little guidance on the approach that the court must take when determining these applications.
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Dismissing a Divorce application – where to start?
I was recently instructed on a case in which my client wished to apply to dismiss a divorce application, on the grounds that the party who had applied for it had not progressed their application to the conditional order. It is clear that this was a scenario that was envisioned, as Practice Direction 7A 5A.4 of the Family Procedure Rules 2010 ‘FPR’, states clearly:
Where, for example, an applicant has applied for a divorce or dissolution order and the application has not been pursued, but has not been dismissed or withdrawn, the respondent would require the court’s permission to make an application for a divorce or dissolution order in respect of their marriage or civil partnership.
However, over the course of the hearing, it became apparent, to myself and the court, that there is little guidance on the approach that the court must take when determining these applications.
Practitioners will be familiar with the standard rules governing matrimonial and civil partnership proceedings.
Firstly, when an application is issued, a copy of it must be served on the respondent accompanied by a form for acknowledging service and a notice of proceedings (FPR 7.5). It is worth noting that an application may be withdrawn at any time before it has been served by giving written notice to the court (FPR 7.6).
Upon being served, the respondent must file an acknowledgment of service within 14 days of service (FPR 7.7(1)). This acknowledgment of service must be signed by the respondent or their legal representative, include the respondent’s address for service and indicate whether or not the respondent intends to dispute the proceedings (FPR 7.7(3)).
A party who has made the initial application for the divorce or dissolution may then apply for the conditional order 20 weeks after the application was issued (FPR 7.9). Most applications will then proceed to a conditional order.
However, once an application has been served, either party may apply to dismiss it under the FPR Part 18 procedure. An application to dismiss must be done using Form D11 and requires the party to confirm whether or not the other party to proceedings consents to the dismissal.
Where the parties have decided to reconcile and, therefore, not proceed any further with the divorce or dissolution, the application can be withdrawn by agreement. A consent order should accompany the completed and signed Form D11.
A party may need to dismiss the other party’s application if they feel the other party is stalling proceedings and they wish to pursue their own application. Pursuant to rule 7.12 FPR 2010, a respondent may not make another application for a matrimonial or civil partnership order for relief in respect of the same marriage or civil partnership unless the first application has been dismissed or finally determined, or the court gives permission.
Where parties wish to withdraw an application after the conditional order has been granted, within the Form D11 parties should request that the conditional order is rescinded alongside as dismissal of the application.
There is no clear guidance for the court to follow when determining an application to dismiss a divorce or dissolution application.
In the case of an application to dismiss by agreement, the court is likely to determine this on the papers and grant the consent order accordingly.
However, where the application to dismiss is opposed, the court must grapple with each application on its merits. The court may consider FPR 4.4(1) which enables the court to strike out a statement of case where it appears:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;
(c) that there has been a failure to comply with a rule, practice direction or court order; or
(d) in relation to applications for matrimonial and civil partnership orders and answers to such applications, that the parties to the proceedings consent.
When determining such an application, the court will take into consideration the full facts of the case, such as:
- How much time has passed between the application being made and not progressed.
- The urgency and necessity of the application (eg. if parties are engaged in financial remedy proceedings and the conditional order has not yet been applied for).
- To what extent the applicant has engaged in the proceedings thus far.
The court is likely to deal with such a statement of case or application summarily.
Mostyn J noted in Thum v Thum [2016] EWHC 2634 (Fam) that ‘a strategic [divorce] petition which is filed and left to hibernate for years while the parties carry on with their marriage’ amounted to a statement of case which disclosed no reasonable grounds for bringing or defending a claim and an abuse of process.
Divorce proceedings are standalone and must be dealt with separately to children and financial relief proceedings. Importantly, parties must be aware that, while either party may issue financial relief proceedings at any point after the divorce or dissolution has been applied for, the court will be unable to make any final financial order until the conditional order is granted. It is therefore essential that, if a respondent to a divorce application feels the application has stagnated, they take steps to dismiss the application and pursue their own application.
This blog was written by Sofia Santos, who practices in all areas of family law. Please get in touch if you have any additional questions and we will be pleased to help you.