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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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How to dismiss a petition after delay? My wife

Customer Question

How to dismiss a petition for divorce after delay?
My wife filed for divorce in October 2014 on the grounds of adultery which I did not defend.
I returned the forms as soon as I received them. After hearing nothing from my wife or her solicitor for some time I emailed the court and discovered they had not even applied for a decree nisi.
I have been separated for over five years now and would like to move on with my life, but I am unable to progress things whilst the divorce petition is still in the court system. I have been told that I should apply to the court to dismiss her petition so that I can file my own divorce petition and take control of the timeline. How do I go about this? And have I waited long enough as I didn't send the response back to the court til December 2014 as I was abroad when the forms arrived at a former address (which might have been deliberate on their part as they seem to want to drag things out).
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
Hello and thanks for your question.

You need to do the following:

1. Write to your wife's solicitors and say that you sent the completed acknowledgement of service form back to court in December 2014, and the court office has informed you that the copy acknowledgement of service form was sent out to them on (date) [check with the court office to find out when] but that the court office have also informed you that they have still not yet received the application for the decree nisi. Pleaase confirm that the application for decree nisi will now be sent to court within the next 14 days, failing which you will be giving serious consideration to applying to court for the petition to be dimmissed and filing your own petition in its place.

2. After 21 days, (to allow time for the court office to deal with correspondence - my local court is ialways AT LEAST at least a week behind in dealing with correspondence), ring the court office, check what day's post they are dealing with, if they have not yet got to the date 14 days after you wrote, ring back when they have. Have they recieved the application for decree nisi yet? If no, then:-

3. Write to the solicitors again, enclosing a copy of your 1st letter - say that you have just rung the court office again, and they have still not received the application for decree nisi. If this is not lodged at court within a further 7 days, then you will be making an application to dismiss the petition and file your own petition without further notice to them.

4. Wait 7 days plus however many days it takes for the court to catchup with incoming correspondence. Ring the court office - if they have still not received the application for decree nisi, then:

5. Complete Form D11, here:

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d011-eng.pdf

In box 3, you are asking the court to make an order a) that the petition issued on (date) be dismissed for lack of prosecution and b) that your own peitition (which can be based on 5 years separation) be issued forthwith.

The grounds are: that no application for decree nisi has been made by the petitioner despite the court office sending her solicitors a copy of the completed acknowledgement of service form to her solciitors on (date), and despite two reminders from you on (date and (date).

D11 box 4 - this application can be dealt with on paper.
Box 5 - no reason why the application can't be dealt with over the telephone.
7 - leave blank
8 - no
9 - your wife care of her solicitor (by the way, if she is no longer instructing solicitors, then the letters I referred to above should go to her & sent via special delivery.)
10 - tick the last box, and the evidence is:

The petition was issued on (date)
The acknowledgement of service form was returned to court on (date)
The acknowledgement of service form was sent by the court office to the petitioner's solicitors on (date)
The court office confirmed by telehone on (date) that no application for decree nisi had been received
You sent a letter on (date) asking for the decree nisi application to be made within 14 days, or you would consider applying for the petition to be dismissed - see copy letter attached.
The court office confirmed by telehone on (date) that no application for decree nisi had been received
You sent a reminder letter on (date) asking for the decree nisi application to be made within 7 days, or you would apply for the petition to be dismmissed without further notice - see copy letter attached
The court office confirmed by telehone on (date) that no application for decree nisi had been received.
You therefore respectfully ***** ***** dcourt to grant your application, and to issue your own attached petition.

I hope this helps and I wish you the best of luck.

Thanks and best wishes...
UKfamsol and 2 other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

That is fantastic, thank you very, very much.

Expert:  UKfamsol replied 2 years ago.
You're very welcome!
Customer: replied 2 years ago.

Sorry, one more question. On form D11 in the box in the top right am I right in assuming that I am filling this in from the point of view of the original divorce proceedings (ie I am the respondent?) and similarly for box 2?

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