Q&As

Where a divorce petition was issued 13 years ago and the respondent failed to file an acknowledgment of service, if they file a petition now will this be treated as a cross petition, and is permission from the court required to serve a cross petition?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on LexisPSL on 29/11/2016

The following Family Q&A produced in partnership with Katherine Illsley of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Where a divorce petition was issued 13 years ago and the respondent failed to file an acknowledgment of service, if they file a petition now will this be treated as a cross petition, and is permission from the court required to serve a cross petition?

For the purposes of this Q&A, the original petitioner who applied for a divorce 13 years ago shall be referred to as the ‘applicant’, and the respondent to that original petition for divorce as the ‘respondent.’

Procedure for divorce and other matrimonial causes is covered by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 7. If the original application for a divorce has not been dismissed or finally determined by the court, the applicant would technically need to obtain the court’s permission for a second application since that original petition still remains ‘live’ despite the lapse in time, albeit the court is unlikely to have easy access to the records of that original petition. The fresh application would be made within existing proceedings.

The parties could, in the alternative, consider whether there is some way to use the original petition, but after 13 years this is not likely to be possible. If during the last 13 years the parties have resumed cohabitation this may effect the applicants ability to rely on that petition, eg if the fact relied upon was adultery and they have lived together for more than six months after it became known that the respondent had committed adultery the applicant cannot rely on that adultery if basing their p

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