99. Divorce in U.K. – Basic rules (2)

Children and divorce

Before starting a divorce petition, kindly read preceding article (No. 98 in this blog) or leaflets D183 (About divorce) and D184 (I want to get a divorce - what do I do?) of Her Majesty’s Court Service.
Will the court be concerned with all the children of the marriage?
No, only those who still need your care and financial support because of their age and circumstances.
You will have to name all living children of the family, no matter how old they are, when you fill in paragraph 4 of your petition. See leaflet D184 (I want to get a divorce - what do I do?).
The court will be concerned with any child who was born to you and the respondent, or who has been treated by you as though they had been born to you, who is:
• under 16; or
• between 16 and 18 and still at college or school full time.
These children are referred to as “children of the family”.
This includes children you have both adopted. It does not include foster children.
Why you have to give the court details about the children?

The court must consider the arrangements you propose for the children after the divorce. In exceptional circumstances it can hold up the final decree (the “decree absolute”) until satisfactory arrangements are made for them.
What will the court want to know?
The court will want to know:
• where they live;
• who they live with;
• whether the other parent will see them and how often;
• about their day-to-day care;
• about their health;
• where they will go to school;
• what financial support they will receive; and
• that any special arrangements to help or protect them have been made.
Does this mean you must ask the court to make orders about all these things?
No. It is better if you and the respondent (and the children if they are old enough to understand) can agree these things together without the court having to make an order (referred to as “exercising its powers under the Children Act 1989”).
Whether or not you and the respondent agree about the children the court will only make an order about them if it would be better for the children than making no order at all.
Parenting Plans is a free guide which aims to help you and your ex-partner agree what the future arrangements for your children will be, and is available from your local divorce court, or by phoning The Stationery Office on 0870 600 5522or online at www.tsoshop.co.uk (by typing ‘parenting plans’ into the search box).
How will you tell the court about the arrangements proposed for the children?
When you start your divorce you must fill in form D8A (statement of arrangements for children) which sets out the proposals you are making.
The respondent can also sign the form D8A to show that he or she agrees with what you propose.
What will happen if the respondent will not sign the form D8A?
The court will send the respondent a copy of form D8A with your petition. He or she will be asked to fill in form D10 (acknowledgment of service) to say whether or not they agree with what you have proposed.
If they do not agree they can make their own proposals on a form D8A and send it to the court. If this happens, the court will send you a copy.
When will the Judge consider the arrangements for the children?
Normally when the Judge looks at the papers after you apply for “directions for trial”. See leaflet D186 (The respondent has replied to my petition - what must I do?). You will not normally have to attend court when this happens.
What will happen if the Judge is satisfied with the arrangements for the children?
The court will send you form D84B (notice of satisfaction with the arrangements for the children). This will tell you that the court does not need to “exercise its powers under the Children Act 1989”.
Form D84B will be sent to you and the respondent with form D84A, the form which tells you when your decree nisi will be pronounced. Leaflet D187 (I have a decree nisi – what must I do next?) will tell you what happens after your decree nisi is pronounced.
What can the Judge decide if he is not satisfied with the arrangements proposed for the children?
In exceptional circumstances he can decide you cannot obtain your final decree (“decree absolute”) until satisfactory arrangements are made for the children.
In that case you will be sent a copy of form D66 (notice that decree should not be made absolute).
In other cases the Judge can decide any of the following:
• That he needs further information about the children. You will be told what extra information you have to provide.
OR
• That an appointment should be fixed for you and the respondent to come and see the Judge about the children. The appointment will be held in the Judge’s room (called “chambers”). Normally only you, the respondent and the Judge will be there.
OR
• That a welfare report should be prepared about the children. A Cafcass children and family reporter will contact you and the respondent and make an appointment to see you both. He or she will want to talk to the children as well. The Cafcass practitioner will prepare a report and when it is ready it will be sent to the court office. The court will tell you how you can get a copy.
OR
• That it would be better for the children if the arrangements you are proposing, or some other matter about them, should be in a court order. If this happens you will need to apply formally to the court. You should ask a solicitor to help you.
Form D84C will tell you what will happen next and what you need to do.
What kind of orders can the court make?
The most common types of order are orders for financial support and “section 8” orders.
There are different types of section 8 orders:
• “residence orders” which say who the children should live with.
• “contact orders” which say who the children are allowed to see, or receive letters or telephone calls from.
• “prohibited steps orders” which prevent a child’s parents, or any other named person, from taking certain steps, such as taking a child abroad without first getting the court’s permission.
• “specific issues orders” which set out precisely how a particular matter about the children should be handled such as their schooling.
The court can also make orders such as “care orders” or “emergency protection orders” where the children are being abused or at risk of harm.
Where can you apply for financial support?
If you are asking for maintenance for a child, in most cases you should apply to the CSA. If you are asking for a capital lump sum or a property adjustment order for a child, you should make an application to the court, whether or not you are also applying to the CSA for a maintenance calculation.
There are some situations in which the CSA does not have power to make a child maintenance calculation, including where the Respondent is the step-parent of the child. In these situations, you may be able to make an application to the court.
A leaflet about the Child Support Agency is available from any court office. The leaflet will tell you how to make an application.

98. Divorce in United Kingdom - Basic rules (1)

How can you get a divorce?
By filling in a form called a “petition” and taking it to any divorce county court or to the Principal Registry in London.
This leaflet gives you a list of all divorce county courts.
The addresses and telephone numbers of all divorce county courts are listed in the telephone directory under Courts.
When can you get a divorce?
You cannot start a petition for divorce unless you have been married for more than one year.
You must explain why you want a divorce
You must be able to prove to the court that you have reasons (or “grounds”) for saying the marriage is at an end. The expression the court will use is that the marriage has “irretrievably broken down”.
The court will accept one or more of the following “facts” as proof:
• that your husband or wife has committed adultery and that you find it intolerable to live with him or her;
• that your husband’s or wife’s behaviour has been so bad that you can no longer bear to live with them;
• that your husband or wife deserted you at least two years ago;
• that you and your husband or wife have lived apart for at least two years and he or she agrees to a divorce; or
• that you and your husband or wife have lived apart for at least five years.
Do You have to live in U.K. to get a divorce there?
You and your husband or wife, must both have your permanent homes (‘domicile’) in England or Wales when the petition is started; or
You and your husband or wife must both be living in England or Wales when the petition is started; or
You and your husband or wife must both have had your last home in England or Wales and one of you must still be living in either of these countries when the petition is started; or
Your husband or wife must be living in England or Wales when the petition is started; or
You must have been living in England or Wales for at least a year on the day the petition is started; or
You must have your permanent home in England or Wales and have been living in either of these countries for at least six months on the day the petition is started.
You may also get a divorce in England and Wales in other specific circumstances. You should contact a solicitor, law centre or Citizens Advice Bureau if you need help deciding which statement applies to you.
Will you need a solicitor?
Probably not. But you will find it useful to have some legal advice before starting your petition if:
• you do not know whether you have grounds for a divorce;
• your husband or wife is not likely to agree to a divorce;
• you have not agreed with your husband or wife who the children should live with;
you have not agreed about any financial support for the children or yourself, or about any property.
The court will give you the forms you need and tell you what to do next. The forms are free.
If you do need help filling in the forms a Citizens Advice Bureau will help.
Remember that court staff are not solicitors. They cannot give legal advice or answer questions like:
• Should you claim financial support?
• Do you have proper reasons for a divorce?
• What will happen to the house you own with your husband or wife?
Will you have to attend a court hearing?
If you can agree with your husband or wife about financial support, property and the arrangements for any children, you may not have to attend a court hearing at all.
You may have to attend a court hearing if you ask the court to make an order for financial support or cannot agree about the arrangements for the children.
How much will the divorce cost?
You may have to pay a court fee for the following:
• when you submit your application for divorce to the court, and
• when you apply to the court for a decree absolute which shows that you are divorced;
• if you submit any applications for financial support or regarding any children in the marriage.
Please ask the court staff for a copy of the leaflet EX50 - County Court Fees. This lists
the most common family fees. It is also available on our website www.hmcourts-service.gov.uk.
What if you can’t afford the fee?
You may not have to pay a court fee or you may only have to pay a contribution towards the court fee depending on your circumstances. For further information, or to apply for a fee concession, ask court staff for a copy of the combined booklet and form EX160A - Court fees - Do I have to pay them? This is available from any county court office, or a copy of the leaflet can be downloaded
from the internet at: www.hmcourts-service.gov.uk.
How can you pay the fee?
By cheque, cash or postal order. Make your cheque or postal order payable to Her Majesty’s Courts Service (HMCS). Please note that courts cannot accept payments by debit or credit cards and we would recomend that you don’t send cash through the post.
Will you need a copy of your marriage certificate?
Yes. You will have to give a copy to the court when you start your petition. It will be kept on the court file. The copy must not be a photocopy.
Where can you get a copy of your marriage certificate if you do not have one?
If you were married in England or Wales, you can get a copy from:
• the office of the Registrar of Births, Deaths and Marriages for the district in which you were married. You can get the address from the phone book. You will have to pay a fee, and they will tell you how much it is.
• You can also get a copy from:
The General Register Office
PO Box 2
Southport
Merseyside
PR8 2JD
Tel: 0845 603 7788
You cannot order in person at the General Register Office. You can apply for certificates
online at www.gro.gov.uk, or by phone 0845 603 7788, lines are open Monday to Friday 8am to 8pm and Saturday 9am to 4pm. Alternatively, you can apply by post to the above address.
There will be a charge for your copy certificate. The office will tell you how much it is.
The office you go to will want to know:
• the date and place of your marriage;
• your full name; and
• the full name of your husband or wife.


Source: The Court Service Website , U.K.

97. Jurisdiction of Civil Court in labor matters - when not barred.

Jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved. Jurisdiction of civil court is rule, exclusion is exception. This verdict has been given by the Indian Apex Court in Civil Appeal No. 328 0f 2005 Rajsthan SRTC v. Bal Mukund Bairwa, decided on 12/02/09.

The Supreme Court held that even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction.

The question as to whether in a case where violation is alleged as regards compliance of principles of natural justice either on common law principles or in terms of the statutory Regulations framed by the Corporation, which is a fundamental right in terms of Article 14 of the Constitution of India, a civil suit will be maintainable or not, had not been taken into consideration in any of the decisions of Supreme court.

A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil court.

If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. The Supreme Court held that “it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.”
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction.

Thus in the court’s view, "In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages."
In a case where no enquiry has been conducted, there would be violation of the statutory Regulation as also the right of equality as contained in Article 14 of the Constitution of India. In such situation, a civil suit will be maintainable for the purpose of declaration that the termination of service and the consequences flowing there from was illegal . Thus this verdict of the Supreme Court of India removes all doubts regarding jurisdiction of Civil court with regard to disputes relating to employment and it has far reaching effect as principles laid down in this decision will not be limited to labor Laws only, but will be applicable to all branches of employment Laws. Now Lawyers and litigants should not hesitate in filing a civil suit where the grievances are covered by the above judgement.

96. Insurer is not liable if DL expired

Recently the supreme court has held that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured." - Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors. (2008) 8 SCC 165.

95. Writ of mandamus - some guide lines

A writ of mandamus is issued against a person who has legal duty to perform but fails in doing so. it is issued in favour of a person who establishes a legal right to be enforced. some of the key points to be kept in mind while seeking a mandamus are:

• the person against whom mandamus is sought must be under statutory obligation to perfom that duty
• the petitioner must have legal right to be enforced
• in cases of inaction or slow action mandamus can be issued
• normally a mandamuss can not be issued against a private individual
• administrative instructions/Departmental orders can not be enforced by writ of mandamus
• mandamus can not be issued to Government to enforce cabinet decision
• mere recomendation of an authority can not be enforced by madamus
• mandamus can be issued to comply with the orders of superior tribunal
• mandamus can not be issued in contradiction with statutory provisions
• mandamus can not be issued to legislature or government to make laws or rules
• mandamus can be issued to take decision on an application/representation if it is pending since long
• mandamus can not be issued to enforce contractual obligations

94. Dissolution of unregistered firm

0n 20/02/2009 the apex court has held that a suit for dissolution of can be filed by a partener of unregistered firm. the supreme court declared maharastra amendment made in 1984 in partenership Act is unconstitutional. Sub-section 2A which was introduced by the Maharashtra

Amendment 1984 states as follows :

"(2A) No suit to enforce any right for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or have been a partner in the firm, unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm Provided that the requirement of registration of firm under this sub-section shall not apply to the suits or proceedings instituted by the heirs or legal representatives of the deceased partner of a firm for accounts of a dissolved firm or to realize the property of a dissolved firm."

The supreme court held that "a partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm. Sub-section 2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm."

The court said that :

"The effect of the Amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes amongst the partners the relationship of partnership cannot be put an end to by approaching a court of law. A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice. Might wouldbe right. An aggrieved partner is left without any remedy whatsoever. He can neither file a suit to compel the mischievous partner to cooperate for registration, as such a suit is not maintainable, nor can he resort to arbitration if any, because the arbitration proceedings would be hit by Section 69(1) of the Act (Jagdish Chandra Gupta vs. Kajaria Traders (India) Ltd. AIR 1964 SC 1882)."

The court said that:

"The primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the Register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the Register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered. However, the Maharashtra Amendment effects such stringent disabilities on a firm as in our opinion are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties ...."

thus the court held that : the restrictions placed by sub-section 2A of Section 69 introduced by the Maharshtra Amendment Act, for the reasons given above, are arbitrary and of excessive nature and go beyond what is in the public interest. Hence the restrictions cannot be regarded as reasonable."

"Since sub-section 2A of Section 69 as introduced by the Maharashtra Legislature clearly violates Articles 14, 19(1)(g) and 300A of the Constitution, it is in our opinion ultra vires and is hence declared unconstitutional."

Thus the Supreme Court's decision gives a great relief to business comunity trading through an unregistered firm.

Congratulations to business comunity.

93. Right to water

on 28th April 2009 a bench of the supreme court speaking through M Katzu,J. directed the central govt. to form a committee to solve the water crisis in the country. the court observed that :

"Despite having immense reservoirs of water in the form of the Himalayas in the North and the Arabian sea, Indian Ocean and the Bay of Bengal in the West, South and East of India, there are water shortages everywhere often leading to riots, road blocks and other disturbances and disputes for getting water"...............................

"In our opinion it is science alone which can solve this problem ( as well as the other gigantic problems facing the country)........................

" India has a strong heritage of science. With the aid of science we had built mighty civilizations thousands years ago when most people in Europe (except in Greece and Rome) were living in forests. We had made outstanding scientific discoveries and inventions in the past (see Will Durants' `The Story of Civilization : Our Oriental Heritage). However, we subsequently took to the unscientific path of superstitions and empty rituals, which has led us to disaster. The way out therefore for our nation is to once again turn to the scientific path shown by our ancestors - the path of Aryabhatta and Brahmagupta, Sushrut and Charak, Ramanujan and Raman.".............

" It is indeed sad that a country like India which scientifically solved the problem of town planning 6000 years ago in the Indus Valley Civilization and which discovered the decimal system in Mathematics and Plastic Surgery in Medicine in ancient times, and is largely managing Silicon Valley in U.S.A. today has been unable to solve the problem of water shortage till now. In our opinion there is no dearth of eminent scientists in the field who can solve this problem, but they have not been organized and brought together and not been requested by the Central and State Governments to do their patriotic and sacred duty to solve this problem, nor given the facilities for this."

"In our opinion the right to get water is a part of the right to life guaranteed by Article 21 of the Constitution"..