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In the Brussels II race to issue, English solicitors are often first to the chequered flag. But just as we are about to cross the line by issuing the petition, the English court sends out the safety car: "You don't have a marriage certificate", FPR 2.6(2). Of course not. It is a rush job to gain priority of time. Leave can be obtained without notice to file a divorce petition without the marriage certificate, with an undertaking to file it within a period. Brief reasons need to be given. Normally it is sufficient to say it is Brussels II race.
So why do some County Courts make it so difficult to obtain this leave quickly? Some courts say the district judge will deal with leave later in the day or perhaps the following day; a guaranteed likelihood of losing the race! Some court staff will even refuse the petition without a certificate and not mention the opportunity of leave. Some district judges on a leave application even seem to question the need for speed under Brussels II! Fortunately a number of courts, eg Principal Registry, are very alert and sympathetic and will permit expeditious leave to issue without a certificate. Alas some don't.
So this is a plea to the county court staff and some district judges.
The non-conciliatory, anti-marriage approach of racing to issue a divorce petition to gain forum is thoroughly deplorable. But it is the law imposed from Brussels and we have to work with it. So please allow us to obtain leave quickly and not make obtaining leave take many hours, sometimes days. Please accept our undertakings to file the certificate, especially foreign certificates, before the special procedure application: invariably it is not needed until then. Please don't ask us why an EU, Brussels II case needs to be issued quickly: the question doesn't give us much confidence! And please record the time of issuing the petition on the court file, as with the pronouncement of the decree absolute. Cases have been won and lost by proceedings being issued first by a matter of minutes, and we need that evidence. Until the law of first to issue is abolished, we need to work together to make it work efficiently.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on email@example.com.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
This work provides commentary, checklists, procedural guides and precedents on the subject in a...