The divorce petition (2)

The reason all the possible remedies are included on the divorce petition is to confer jurisdiction on the court to deal with the financial issues arising from the marriage. This is to avoid the court turning round at a later date and saying, “But you didn’t ask for this particular order so we cannot give it to you.” In circumstances such as that it would be necessary to seek leave to amend the divorce petition. In practice it is just better to ask for all available orders at the outset on the divorce petition so as to avoid this difficulty. All the possible remedies are included on the divorce petition in order to confer jurisdiction on the court and not necessarily because the petitioner is asking the court to make all these orders.

It is also necessary to have these orders mentioned here if only to have them formally dismissed by the court at a later stage. For instance, both spouses might want a “clean break” in which neither pays maintenance to the other. This is very common and it is what many couples want. In such a case the eventual court order may formally “dismiss” the Petitioner’s claim for periodical payments. Once that has been done the Petitioner cannot re-open the matter in the future and there is truly a “clean break”. If this request for periodical payments were not included in the divorce petition and the final consent order did not mention it either then theoretically the Petitioner could seek maintenance from the Respondent at any time in the future.

It is therefore in the Respondent’s interests to ensure these words are included as well as in the Petitioner’s. In this case the application for periodical payments is being made so that the court can formally dismiss it rather than because it is intended to pursue the claim. People very often do not realise that claims should be included on a divorce petition just so the court can dismiss them. This prevents then ever being raised again at some point in the future. It is very important to understand this and you are recommended to look at the case of Wyatt v Vince to understand just how important it is.

This is all rather technical but UK divorce law is technical. It is a pity that these things are not straightforward but the bottom line is that there is good reason why these words are included on a divorce petition. They do not necessarily mean that the Petitioner is going to seek them all and the Respondent is not prejudiced in any way by agreeing not to defend a petition containing these words. The Respondent is just agreeing to the divorce but not anything else. His/her rights in respect of any financial settlement remain quite unaffected. It is important to understand this because this is the very difficulty which usually causes people to bring a divorce petition to a solicitor seeking divorce advice. The reason the words are there needs to be carefully explained. Anyone who wants a quick divorce would be wise to expain the contents of the divorce petition to the respondent before he/she receives it because not understanding the reason these words are on a divorce petition is a major source of delay in most divorces. It takes time for a respondent to make an appointment with a solicitor to discuss it. If it is explained first it saves a significant amount of time. (And there is a similar need for explanation of the so-called “Acknowledgement of Service” for slightly different reasons).