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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 744
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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I filed a divorce petition in England on the basis that my

Customer Question

I filed a divorce petition in England on the basis that my ex - wife and I are separated for more than 5 years. She lives abroad and not a UK resident anymore. The court sent a copy of the petition on 9th July. She did not seem to have acknowledged the
receipt of the petition and neither replied to it. It is more than 30 days now. What can I do ? and which application to use and what will be the court fees ?
Submitted: 1 year ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your question - I am a family solicitor and am able to help.
Please could you tell me - which country is your wife now living in?
Kind Regards
Caroline
Customer: replied 1 year ago.
In India.
Customer: replied 1 year ago.
I am a UK citizen and habitually resident here for more than a decade.
Customer: replied 1 year ago.
We lived in the UK together for less than a year and then separated in May 2010.
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your replies.
Thank you for confirming that the Respondent is residing in India.
The Family Procedure Rules at 6.45 state that:
(2) Where the applicant wishes to serve an application form, or other document, on a respondent in any country which is not a party to the Hague Convention, it may be served, if the law of that country so permits –
(a) through the government of that country, where that government is willing to serve it; or
(b) through a British Consular authority in that country.
You would need to send to your local court a written request to your divorce takes place in accordance with the above rule. You would need to send to your court a certified translation of your divorce papers.
Your local court officer will seal the papers and forward them onto the Senior Master of the Queens Bench Division. The Senior Master will send this to the Foreign and Commonwealth Office with a request that it arranges for the application form or other document to be served.
Please Note that in relation to costs the FPR provides at
6.48
Every request for service filed under rule 6.46 (procedure where service is to be through foreign governments, judicial authorities etc.) must contain an undertaking by the person making the request –
(a) to be responsible for all expenses incurred by the Foreign and Commonwealth Office or foreign judicial authority; and
(b) to pay those expenses to the Foreign and Commonwealth Office or foreign judicial authority on being informed of the amount.
It is therefore advisable to try and speak with the Foreign and Commonwealth office in advance to ascertain if they can provide you with an estimate of costs.
Kind Regards
Caroline
I would be grateful if you could kindly rate my answer. I am new to this service and positive feedback is gratefully received.
Customer: replied 1 year ago.
I already submitted an application with marriage certificate (in English) and the court notified me that it sent a copy of the petition to the respondent. When I called the court I was not told anything about approaching foreign office. I am not intending to question your response but are you sure what you mentioned is correct ?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Yes. The Family Procedure Rules set out the process for service out of the Jurisdiction when the Respondent has not acknowledged.
All the Court Staff would have done so far is serve you petition by post.
If the Respondent does not acknowledge service then you need to prove to the court that the Respondent has had the divorce papers and choose not to respond.
If the Respondent was in the UK then you would have to have the Respondent personally served with the court papers either by a court bailiff or process server. The person who served the papers would then provide a statement to confirm they had served the papers. You would the attach this statement to your application for decree nisi.
Before the FPR then courts were accepting statements from advocates/ servers outside the Jurisdiction however the FPR simply doesn't provide for this and says services has to go through local court or embassy.
Kind Regards
Caroline
Customer: replied 1 year ago.
Cant I ask the court to consider the petition to be deemed to have been served ? It is a 5 year separation application.
Customer: replied 1 year ago.
Is there any other way to serve it ? through private courier service, etc ?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
I can say that I have had Judges accept statements from advocates confirming service since the FPR. But this I'd no guarantee as as per my previous posts the FPR only sets out through the Local Embassy or the Court.
You have to follow the steps in the FPR to progress you case. Otherwise you are in stalemate.
Kind Regards
Caroline
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 744
Experience: Divorce, Finances, Children, Domestic Violence, Care Proceedings
ukfamilysolicitor and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
I have been in touch with the court and it has been more than 3 months and the post sent to my wife has not been returned as undelivered and no acknowledgment or response has been provided. I have been told by the court office that since I have not received a completed acknowledgment of service I can go for 1 of the options i.e. apply to the court without notice for the District Judge to consider whether the petition is deemed to have been served or option C whether the directions should be given.I am thinking of applying for option B. Can you please give some advice or direct me to some information which may help me to understand option B and C well and also whether my application may be successful ?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your question.
Service is dealt with under FPR part 6 including deemed service and service by alternate means.
https://www.justice.gov.uk/courts/procedure-rules/family/parts/part_06
The difficulty remains that you are looking to serve out of the Jurisdiction and if a Judge was to follow the FPR to letter - as explained in previous posts - then the correct process is through the embassy or local court.
Kind Regards
Caroline
Customer: replied 1 year ago.
Apologies, but I would appreciate if someone more experienced in this matter / circumstances can respond ? I want a bit more definitive response on whether the judge will reject my application i.e. if I do not write to the court to send the copy of the petition through embassy. The court already sent a copy of the petition directly to my wife's address and it does not make sense for the court to try and send the petition copy again through an embassy and if this was the case then I should have been told in advance before the copy was sent to her by the court directly.It will help if someone who came across such cases sheds some light. Or, I would appreciate if I can be pointed to some literature or Book which may give me more clarity.
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** I shall do my best to help youFor clarity - you know where your ex is currently living in India?Clare
Customer: replied 1 year ago.
Yes, the address I have provided on the petition is the address on marriage certificate as well (marriage took place in India and she provided that address then and its her family (parents) home).
Expert:  Clare replied 1 year ago.
In fact the way forward is simple - although not necessarily cheap.You need to arrange for your ex to be personally served with the paperwork in India.You need to send a further copy of the Petition to the court and ask for the papers to be sealed and returned to you for personal serviceA local lawyer in India should be able to arrange service - or there are firms of Process servers who can assist.Another option is to use DHL or UPS and a signed for delivery - but this will not be a certain way of doing thingsOnce you have done this then if there is still no response you can apply for Service to be Dispensed with, explaining the steps thatyou have taken, and the matter will go throughPlease ask if you need further detailsClare
Customer: replied 1 year ago.
Clare, thanks for the reply. The previous response I received states "Family Procedure Rules at 6.45" and serving it through embassy etc. I will be happy to use private courier but will the judge accept this delivery method ? Its a 5 years separation application.
Expert:  Clare replied 1 year ago.
Yes the court will accept personal service - it is not unusual You will simply need to have an Affidavit (oath) confirming service to file at court
Customer: replied 1 year ago.
Okay, and the petition copy should first be sealed by the court ? is this very important ? i am just concerned about the delays..is there any alternative to getting it sealed by the court ?
Expert:  Clare replied 1 year ago.
It is the court who have to provide the papers for serviceThey will provide this promptly if you ask for it

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