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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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My step mother has filed for divorce in the UK in Feb 2016

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My step mother has filed for divorce in the UK in Feb 2016 on domestic violence grounds. She is resident with my father in the UK since 2008. My father keeps delaying the divorce claiming she is not his legal wife as she has hidden her previous marriage from him. The obvious reason is to not have to give her money. He has this filed criminal charges against my step mother for concealing her previous marriages in India in order to obtain a judgement against her that defeats the UK case. What are her options?
Customer: replied 2 months ago.
The objective here is to obtain a fair judgement for her. My father is extremely abusive. I am a witness of accounts of violence that I have filed in favour of my step mother.
The criminal charges pressed vs my step mother in India have been instigated by my father this through questionable methods. She has not received court summons for those proceedings and they affect her rights to travel back to India as they are arrestable offences for which there is no bail.

Good morning. I will try to assist but need more info first - also I apologise if delayed in replying

Where were they married?

is she still living with him?

have the police been involved re the abuse?

Customer: replied 2 months ago.
Married in India
Not living together now
The CPS charges my father with common assault but he was found not guilty
Customer: replied 2 months ago.
She is in social accommodation. Living on benefits. Does not speak English. I do wish to proceed by phone at this stage.
Customer: replied 2 months ago.
I do not wish to converse over the phone at this stage.

Your stepmother cannot get divorced on the grounds of domestic violence.

It would be, if there is domestic violence, unreasonable behaviour.

A small point.

Whether your stepmother was married before or not (provided she was divorced) is not relevant as is it irrelevant whether she has told him or not.

What is extremely relevant of course is that she must be divorced from her previous marriage before she could marry your father.

If she was not divorced from her previous husband, then she is not legally married to your father and he has no liability to pay her any spousal maintenance.

Further, if she was not divorced from a previous husband (either divorced in India or the UK-it doesn’t matter where they were married) then she commits the criminal offence of bigamy.

So the important thing here is whether she is divorced.

Does she have the divorce papers in respect of her previous marriage?

Customer: replied 2 months ago.
she does have documents to prove this. She also has documents from the govt of India recognising her marriage to my father. And he was also fully aware of the previous marriages.
Bigamy are the grounds he is using. However how can such a case be brought forward 2 years after the divorce petition has been filed? A similar assault had taken place in 2013 but my step mother did not press charges after giving in to pressure from my dad’s side of the family.

Thank you.

He cannot file criminal charges in the UK. At least, it is extremely difficult for him to do so and uncommon in the extreme. I have never had a client do it in over 25 years in the legal profession. He may make a complaint to the police and allege bigamy but that’s a different issue.

If he is making it up because he has clearly been shown the divorce papers from India, then he risks being prosecuted for wasting police time.

He is going to need a certified copy of the divorce petition translated by a court approved translator who can confirm the authenticity of the document. Alternatively, a letter from a UK solicitor who knows about Indian law and who could verify the authenticity of the document and that it was a valid divorce, would also suffice. That is the first thing that she needs.

I can’t comment on the legal situation in India with regard to his complaint.

I cannot see how those allegations should affect the divorce and I don’t know what is holding it up.

Meanwhile, if she is concerned that whilst they remain married, he has some control over her, she can apply to court for a Non-Molestation order to prevent him coming within 100 m of her and if she was still in the house, an occupation order to prevent him moving back in.

If he breached one of those orders he is liable to be arrested because that’s contempt of court which is a criminal offence and would generally lead to him serving a short jail sentence.

Whilst there may not be sufficient grounds to prove assault beyond all reasonable doubt which is the burden of proof for the criminal proceedings, the matter of the complaint to the police is probably enough to satisfy a civil court where the burden of proof is only on the balance of probabilities (51%). It would be therefore worth seeing a solicitor with a view to getting a non-molestation order and because there is domestic violence involved here, she may be eligible for legal aid.

If you can tell me what the hold-up is with the UK divorce, I can tell you how to deal with that. If he is simply not replying to the papers, that’s easy to deal with by asking the court for an order for deemed service were all she needs to do is prove to the court that he had the papers and is ignoring them. She just needs to prove they went through his letterbox.

Customer: replied 2 months ago.
My father’s answer to my step mothers petition is that their marriage is not legal. However, he brought forward through his sollicitor a motion to allow the divorce to proceed on an uncontested basis which she agreed to. When the judge was about to give degree nisi, he travels to India and filed a criminal lawsuit. He has not made a full declaration in form E. He is saying he will travel to India for the criminal case and will attend to the schedule of deficiencies later. We feel this is a delaying tactic to run away from the UK courts. He has transferred all his money to Mauritius.
Customer: replied 2 months ago.
He also said he dumped his sollicitor because he did not agree with their advice to continue the case on an uncontested basis. And is now contesting the divorce again.

If their marriage is not legal, then they don’t need to get divorced and that’s the end of it. She then has no claim against his money although she may have a financial claim against the house if she contributed to it financially.

It seems somewhat odd that he is allowing the divorce to go through therefore because there is absolutely no need if he is confident that she is already married.

The court can order him to return assets to the UK and if he does not comply with that order, he is liable to be arrested. If he decides to go back to India, it’s unlikely that he would be extradited but also highly likely that he would never be able to return to the UK under threat of arrest once more.

In respect of his tactics to contest not contest contest not contest, it’s a case of making an application to the court for the judge to make his own mind up and be satisfied that just because has been shown that the marriage should be ended.

However in respect of a financial order, this has to be done before the decree absolute so it’s probably not a good idea to rush.

Customer: replied 2 months ago.
She had a non-molestation order which expired in December 2017. A fresh application was not made by her then sollicitor. He now regularly threatens her on the street in Dorchester. He says I will ruin you, I will destroy you.
Customer: replied 2 months ago.
My father is not an Indian citizen. He is a British and Mauritian citizen who married an Indian citizen.
Customer: replied 2 months ago.
brought her to the UK in 2008. He has signed an affidavit before their wedding that says he was aware of her previous marriage situation.

I find it somewhat bizarre that non-molestation orders have a time limit on them. However they do and she needs to reapply. She will get another one.

Your father’s nationality is not relevant for the purposes of this.

I don’t know why he had to sign an affidavit about the previous marriage. There is no “situation” if she is divorced. The marriage doesn’t exist any longer.

Customer: replied 2 months ago.
I guess what I’m trying to ask is: can the criminal lawsuit have a bearing on this divorce? He is buying time here in order to obtain a judgment in India (by corrupt means) which convicts my step mother of bigamy. She has neither received a summons nor can she travel back for fear of being arrested.

It really comes down to the judge.

As I said earlier, if she is convicted of bigamy in India, there is no marriage in the UK and no divorce is necessary.

It depends whether the judge is convinced that the allegation which has been made in India has been made in India for the right reasons.

I think it highly unlikely that a judge would accept that quite simply because if they are both in the UK and there is an allegation of bigamy and your father is a UK citizen, there is absolutely no reason why he would go halfway around the world to make the criminal accusation when he could easily go to the local police station. I can tell you now why he hasn’t gone to the local police station and that is highly likely to be because he knows that his claim is spurious and he doesn’t want to be convicted of either wasting police time or attempting to provoke the course of justice.

Customer: replied 2 months ago.
Wrong window?

I don’t understand what you mean by wrong window

Customer: replied 2 months ago.
Ok sorry, got your explanation now. So what is the best course of action now? The case is at the FDR stage where my step mother has submitted her schedule of deficiencies which is very extensive. My father’s documents are incomplete in this respect and do not reflect the true state of his finances. He has now asked for nth postponement to attend the criminal case in India. Can we push for the proceedings to be held without him? Can we apply to seize his passports? Can we apply to freeze his finances? Can we apply for a forensic expert as a preliminary order has been given for an accountant to give an opinion on the merits of a forensic expertise. And the accountant has responded that there are grounds for it. This is making the costs very high too and my step mother can not afford a £5-7k expertise.

I can’t see why, as I said earlier, he has instigated the criminal proceedings in India. This is nothing to do with the Indian courts.

I would push to oppose the application for postponement.

There is no need to ask for his passport to be seized, it would just be sufficient for the hearing to go ahead without him because he will not get the result he wants if he is not there.

You can apply to freezes finances if you believe that he is going to put them beyond reach although from what you have said he has already tried to do that.

You can employ whatever forensic experts you can find.

You can potentially ask the court to award any costs against your father if you can prove that he has been deliberately obstructive in all these costs which your stepmother is incurring are as a result of your father’s unreasonable behaviour

Before you go (you can come back here at any time as the thread stays open), please don’t forget to use the rating service because that gives me credit. It doesn’t just give me a pat on the head! The thread remains open. We can still exchange emails.

Kind regards.

FES

Customer: replied 2 months ago.
Well he has declared he is £20,000 in debt. And he keeps traveling. Threatens me in Mauritius when I’m out there. Threatens witnesses who have retracted in india. Transfers money, and now starts a criminal case. Are these not enough reasons to prevent him from traveling? Now that he has transferred over £1m in assets abroad, it seems unlikely he will return if he knows the court is turning against him. There would be no means of enforcing any orders if he leaves.

You can enforce an order of the UK court in India. It’s not easy but it can be done.

Customer: replied 2 months ago.
Well yes, as you say not easy. If we know this, why should we allow it? No steps to stop this?

You are jumping the gun. At the moment you have a mountain to climb. You need to deal with this a bit at a time and the first thing to do is to get the hearing date organised.

When you talk about allowing it, and what steps to stop it, I’m not certain what you’re talking about.

Customer: replied 1 month ago.
We have a hearing for the 11th of September which has changed from an FDR to a directions hearing and it hasn't been postponed. What is a directions hearing? How and what must we prepare for this?My stepmother has submitted her schedule of deficiencies according to previous proceedings and has his reply now been put off?In his application for postponement he stated that he would be traveling to India on the 19th to the 30th Inclusive for the hearing of his criminal case against my stepmother for bigamy. However, he has been spotted late evening on the 19th in the hometown of Dorchester. Can this be used against him?My father has been allowed until the 4th of September to tell the court why the British court should dismiss the case as he believes the UK courts have no jurisdiction over this case. And we have until the 10th to reply to this. This application was put in along with his request for adjournement.We have 4 reports from India that support the validity of the marriage including that of a retired Advocate General and previous sitting Judge.Can an application be made in court to order my father to reveal the case details in India? We have no means of tracing his criminal case in India, which apparently had a hearing yesterday, as there are so many courts within one District. Therefore, we are not in a position to defend against his allegations.My stepmother has also received death threats (which have been reported to the police) which prevent her from traveling to India. She has been warned about this by family members and friends in India.It feels as though the situation is getting out of hand as my mother is on social benefit, cannot afford the mounting costs and her health is very poor both physically and mentally. As you mentioned we have a mountain to climb. We feel as though it gets steeper and steeper.I am unemployed myself and as I said my stepmother is on social benefit. Her allowance is only some 750/mth. She has been living on 250 or less per month for the last two years. This is somewhat unfair.What can you suggest to keep the costs down? What should be the top priority right now?

Can I trouble you to please use the rating service because the thread is now almost a month old and until you use the rating service, I don’t get paid. Thank you.

A directions hearing is not a hearing to decide on the divorce. A directions hearing is to decide on who should exchange what witness statements with who and by when and who should provide what evidence. It’s just basically a plan to move the matter forward.

I think the coincidental dates of the 19th and the 19th are too close together. He would need to have been spotted in Dorchester sometime after the 19th because he could always allege that he wasn’t travelling until late.

The British courts have jurisdiction over a divorce if the application has been made for a divorce in the British courts and the couple are married.

Of course you can make an application in the UK court for him to disclose the Indian criminal details and provide a certified translation of the proceedings. After all, you don’t actually know that those proceedings actually exist!

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