Thum v Thum – Petitioners should act ‘reasonably promptly’ to serve a Divorce Petition following issue
Following the issue of the Divorce Petition by the Court, the Divorce Petition is usually sent to the Respondent by post. In the event that the Respondent ignores the divorce papers, the Petitioner has to satisfy the Court that the papers have been received by their former spouse in order to progress to the Decree Nisi (the second stage) in the Divorce Proceedings. We outlined the options available to deal with issues commonly encountered in respect of service in our previous blog. See more at: http://bit.ly/2f6SvYr
Often clients do not want their spouse to know that a Divorce Petition has been issued straightaway and therefore seek to delay service of the papers upon their former spouse. The decision of Mr Justice Mostyn in the recent case of Thum v Thum provides some useful guidance on this issue.
In this case, the Wife issued a Divorce Petition in England on 26th October 2015 and made no attempt to serve the Husband until, on 19th January 2016 when she sent the papers to the relevant Court office for service out of the jurisdiction. A typographical error contained within the details of the husband’s address which caused effective service to be further delayed until 27th February 2016. On 27th February 2016, the Husband was served by personal service when he landed at Heathrow Airport. The Husband, by this time had already issued his own German Divorce Petition (in January 2016) and he applied to the Court as he considered that the Wife had failed to take proper steps to serve her petition and it should therefore be struck out. The Husband’s application was dismissed.
Mr Justice Mostyn noted, in his judgment, that there is no requirement to serve the Divorce petition ‘forthwith’ or ‘as soon as practicable’. The furthest Mr Justice Mostyn would go was to say that he would expect:
‘a requirement of acting reasonably promptly and that promptitude should be informed in a broad way by the (extendable) time limits in CPR 7.5’
The Civil Procedure Rules Mr Justice Mostyn refers to deal with the issue of a civil claim form which is to be served within 4 months from the date it was issued (if within this jurisdiction) and 6 months if service is to be effected overseas. A full copy of the judgment in Thum v Thum can be found at: http://bit.ly/2dS20su
Whilst a Divorce Petition can be issued and Divorce papers held on file, this should not be done indefinitely. As Mr Justice Mostyn outlines in his judgment above, Petitioners should act ‘reasonably promptly’ in serving a Divorce Petition, ideally within a few months (no more than 4 to 6 months).
Deciding where and when to issue Divorce proceedings may need to be carefully considered. At Lund Bennett Law we can advise you regarding your options, the impact of the same and act decisively for you when our assistance is needed. Please contact a member of our team for more advice today on 0161 927 3118.