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23 MAY 2012

Stuart Clark: The Race to Court 2 - A Paralegal's Guide

Stuart ClarkMy colleague, Lucy Loizou, wrote an opinion piece published on 26 April 2012 about why you may need to be "first to issue" divorce proceedings where there is a jurisdiction race. In light of her piece I set out here how to race to Court in those circumstances.

This opinion piece relates to my experiences at the Principal Registry of the Family Division (PRFD). I have often donned the running shoes for the quick sprint along High Holborn to be first to issue (not always purely in the metaphorical sense!). The PRFD typically take 10-14 days to issue a petition. In tight jurisdiction races this time cannot be wasted; a personal appearance at the Court by a junior member of staff to make an application to the District Judge of the Day (DJD) to expedite the issue of proceedings is needed.

The District Judges at the PRFD are acutely alert and aware of jurisdiction races and the issues involved. However one can easily be way-laid, side-tracked, set-back and frustrated when seeking to expedite issue. My intention is to guide solicitors and the junior staff members at the coal-face on how to prepare a petition at 9am and have it ready to serve by 5pm - it is eminently possible. The race to be first in time can come down to a matter of hours - anything that can make the process quicker could prove vital in establishing jurisdiction.

Preparation is important. The staff at the PRFD are eagle-eyed and any deficiencies in the divorce documents can set you back a couple of hours, or much longer. Keep an eye on the following:

- Check that the details on the petition match the details on the marriage certificate exactly, it may sound simple but I have witnessed proposed petitioners caught out by this - look out for exact names, birth names, married names and the date of marriage;

- Make sure you provide the original marriage certificate - if you do not have it then be prepared to undertake to the Court to provide it by ahead of the application for Decree Nisi. Make sure you can actually get the original;

- Foreign marriages are, of course, often involved, so provide translations of the marriage certificate, even an informal translation by the client will help the Court staff to process the Petition (so long as you can then provide a formal translation later). Never undertake to file a foreign marriage certificate - you may never be able to obtain it and then you will be in professional regulatory hot water.

So, how do you get your petition issued in a matter of hours?

1. Get to Court early - the DJD sits from 10.30am so be there by 10am if possible. If you obtain leave to expedite in the morning the petition should be ready by 4pm. If you wait until the afternoon to go to the DJD it is unlikely to be issued before midday on the next working day;

2. Pay the fee first (this should be done before approaching the DJD);

3. Then go straight to the DJD. You do not need to queue at the divorce counter - simply head for the court in which the DJD is sitting, inform the court clerk of your intention and sign-in;

4. Give the District Judge everything; by that I mean all the documents that accompany the Petition - the DJD will want to know that the Petition is completely ready to issue;

5. Tell the DJD why there is a need to issue urgently, specifically why the Petition has to be issued that day. A covering letter to the DJD from a knowledgeable lawyer with conduct of the case could be useful here, and, with some Judges, they will not need to hear too much from the advocate as a result. Concentrate on:

  • Why does England and Wales have jurisdiction?
  • Where are the assets?
  • Has the proposed Respondent threatened to issue abroad?
  • Why would the foreign jurisdiction be unsuitable?
  • Is it an EU case?

6. Remember that under the Rules you are required to produce to the other parties an attendance note of any ex parte application - be careful what you say and keep a careful note;

7. If you receive leave head to the divorce counter as soon as possible to hand in the petition and the District Judge's endorsement. Whilst the District Judge may have given you leave to expedite it will typically take 3-4 hours then to have the petition issued;

8. Ensure the precise timing of issue is on the Court file and make an attend note of issue;

9. Return to Court to collect the petition. The Court staff are under a massive strain and have a huge workload - it is unfair to rely on them to tell you the Petition is ready. Telephone the Court to check and return to the Court to collect the petition within 3-4 hours; 

10. Consider service by the Transmitting Agency and self-service on the Respondent as a "belt and braces." Priority under Brussels II requires not just issuing but preliminary steps to start the service process.  

Stuart Clark is a senior paralegal with The International Family Law Group LLP. He is an assistant to the other fee earners within the practice and assists in complex financial and children disputes often involving international elements and jurisdiction races. He undertakes advocacy work for the practice and as an agent for other firms. He is a non-practising barrister and will be qualifying as a Solicitor later this year. Stuart thanks Michael Allum, trainee at The International Family Law Group LLP for his assistance with this article.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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