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The Judge hasn't accepted my petition for divorce

(20 Posts)
NightOfTheCactus Mon 11-Nov-13 18:01:51

I'm so upset and frustrated.

Sorry - this is long, but just want to make sure I'm being clear

I petitioned for divorce a couple of months or so ago. I'm on benefits due to MH issues and am therefore skint, so instead of being represented by a solicitor, I decided to be advised by one instead, so I've selected the services I want help with and done some stuff myself.

Therefore, after my initial appointment with the solicitor where she talked to me about how to fill in the form petitioning for divorce, I filled in the form myself, then made an appointment where she checked through the form and looked at the way I filled in my grounds for divorce.

Then, after my STBXH responded, I filled in the forms to apply for the decree nisi and to back up my initial petition. Again, I made an appointment with the solicitor so she could check through the forms to make sure I'd filled them in OK.

I've filed on the grounds of unreasonable behaviour. The advice that I was given by the solicitor (who is a resolution member) was to be as mild as possible in stating grounds for divorce - so I was pretty diplomatic in my grounds, but I still detailed a relationship where there was a lot of anger from STBXH and anxiety from me (because of my MH problems), a lack of physical affection/intimate relationship and a lack of emotional support from STBXH.

In reality, my marriage was pretty toxic - perhaps borderline emotionally abusive - STBXH is someone who holds on to a lot of anger, so although he never physically hurt me, I got ranted at a lot, criticised, physically rejected and ridiculed. There were also times where he was OK with me, but I never felt like we were friends. My mental health has improved significantly since we split up. In the meantime, I've been fighting to keep the split as amicable as possible for DD. There has been lots of anger from STBXH and I have just got to a state with him where we are getting on alright and being friendly and respectful - and he's actually being helpful and relatively pleasant - which is great because DD has seen lots of nastiness from him towards me, and she adores her Dad - and lets face it - even though I'd cheerfully never see him again, I am always going to have a partnership with him because of DD.

We've arranged for him to spend Christmas day with us, and we've liaised so I can get presents from both of us - so I'm quite happy about how far we've come in resolving the nastiness between us.

I got a letter from the Court today - expected it to be the hearing for the Decree Nisi, but instead it was document entitled "Matrimonial Causes Rules" saying that the District Judge is not satisfied that I'm entitled to the decree sought because the particulars of behaviour do not amount to the standard required to prove this ground, and that I should file an amended petition and renew the request for directions for trial.

So I'm now thinking - what on earth do I do now?

Have I been badly advised by the solicitor? If she checked through my forms and said they were OK, but they were rejected, is that something that often happens? Should I be entitled to any free advice on the back of this - or do I just have to suck it up and come up with more money?

Do I need to start the process again from scratch?

I'm worried about what to say if I re-file. I want to keep things amicable between me and STBXH - and I don't know how I'm going to do that if I need to rake up the more nasty elements of our marriage - I really don't want to start more conflict with him because he can be really unpleasant and that impacts very negatively on my mental health

Just don't know what to do next - what should I do now?

If you've read this far, thanks.

(I think I might post this on the Lone Parents board too)

poppy77 Mon 11-Nov-13 18:08:08

I'm not knowledgeable enough to answer the other questions, but how long before you can use the 2-year separation thing? It might be worth holding out for that.

NightOfTheCactus Mon 11-Nov-13 18:13:53

It'll be over a year's wait sad Just want this marriage to be over...

VirgoGrr Mon 11-Nov-13 18:37:03

This forum was useful when I put together my petition. It may be clearer to do a series of points relating to different aspects of your relationship, if this wasn't what you submitted. The point is to illustrate that the relationship is irretrievable. I put about 10 different points in mine and edited it to make sure that there was a balance between what was going to get his back up while still making it clear that it qualified as unreasonable behaviour.

I haven't had my decree Nisi approved yet, but that's down to him objecting to the costs order I asked for - fingers crossed that hurdle is nearly crossed.

Good luck!

NightOfTheCactus Mon 11-Nov-13 18:53:36

Good luck to you too Virgo - and thanks smile

celestialsquirrels Mon 11-Nov-13 18:54:16

Judges generally want to give people divorces if one of the parties no longer wishes to be married. However they cannot do it if you don't properly make out the fact you are relying on. The usual reason on an unreasonable behaviour petition is because what is lodged is drafted in such a mealy mouthed way that it doesn't even put the blame on the other party, which it has to do by law. I've seen one which said that the unreasonable behaviour was "we were constantly fighting and constantly hitting each other" - makes both parties sound as bad as each other which is not the point!

So this would be unacceptable "during the course of the marriage H was often angry. We hardly ever had a physical relationship and often slept apart. I suffered from anxiety". But this would probably be acceptable "during the course of the marriage H would get angry and abusive, constantly ridiculing and criticising me which made me upset and anxious. H would withhold physical affection from me and would often sleep in a separate bedroom to punish me. Because of the abusive atmosphere my anxiety increased and my H did not provide me with the emotional support I needed to get better. My mental health only improved after separation.".

There is a line to be struck between not antagonising H and making out the fact you have relied on. Have another go, making sure that each statement you makes can lay the blame at H's door. And tell H you are having to make it more specific because it has been knocked back once. Good luck.

NightOfTheCactus Mon 11-Nov-13 19:23:14

Thanks celestialsquirrels - I think you've hit it on the head when you talk about petitions being "mealy mouthed" - to be honest I did try to make it as unblaming as possible - because that was the advice I was given - I'm a bit confused about why an experienced family solicitor would look at what I'd written and tell me that I'd got the balance right if there was no way it was going to be accepted confused. Not sure whether I ought to feed this back to the solicitor - I guess taking further advice from her is probably not worth it - a shame, because she seemed really good...

Oh bloody hell - really wanted to continue on an even keel with STBXH but this is really going to put the cat among the pigeons sad.

So do I need to start the divorce process all over again from the start now?

celestialsquirrels Mon 11-Nov-13 20:18:58

Not exactly from the start but you will need to refile and serve an amended petition (amended in red) and then renew your request for dn (re swearing etc). Amending petitions can be a bit technical to get them right - could you get the solicitor to help you get the procedure right and shame her into charging you little or nothing on the basis her approval of your wording was clearly a bit duff?
Re exH - I think if you just tell him you need to spice it up a bit because it wasn't blameworthy enough for the court and not to read anything into it- won't that work?
The silly thing is that what you write in the petition is basically never referred to again (unless it talks about abuse of the kids) but people wrongly assume it sets the tenor for the ancillary relief etc. It simply doesn't matter for anything except getting the DN.

TheTruffleHunter Mon 11-Nov-13 20:27:51

Hi Cactus - mine was initially rejected on the same grounds, and for the same reasons - not wanting to make XH out to be a selfish cunt which he was to keep things as amicable as possible.

I spoke to him about having to beef up the examples of his unreasonableness for the court and he suggested I simply file due to adultery as he was by then in a relationship with someone else (although not before, oh no!).

Went though no probs after that.

Collaborate Tue 12-Nov-13 09:01:14

The judge who dealt with your petition must be a dinosaur. Where both parties agree the marriage has broken down it is seldom appropriate for more than the least controversial allegations to form part of the petition. You have far more important things to sort out, and keeping things amicable can really help with that.

lostdad Tue 12-Nov-13 09:10:06

Agree with Collaborate completely.

In an amicable divorce one party will make an application based on unreasonable behaviour with the grounds being as mild as possible with a mind to keeping things amicable.

celestialsquirrels Tue 12-Nov-13 14:14:48

That's unfair collaborate. I've seen lots of petitions where what has been written couldn't in any universe be construed as unreasonable behaviour. The judge can only apply the law. One that sticks in the mind is a petition where the petitioner had written "the Respondent had uterine cancer resulting in a hysterectomy and so cannot provide me with children." The judge had written "Loss of a uterus is not behaviour upon which a petition can be founded".

An extreme example but you get my point. Masses of petition are filed which day "we were fighting a lot and we were both going out desperately and we were sleeping in desperate beds and we have decided we can't be married any more". Again, where is the respondent's behaviour in that? If you don't set out behaviour upon which a petition can be founded then how can a judge allow a petition to go ahead on that basis?

It's not a rubber stamping exercise.

celestialsquirrels Tue 12-Nov-13 14:15:33

Desperate... Should be separate!!!!

Collaborate Tue 12-Nov-13 18:12:27

I accept it has to be actual behaviour, rather than just something that's happened to someone, but in my local court the judges have been told to let through all but the most ridiculous if petitions.
It is a subjective test, you know.

celestialsquirrels Tue 12-Nov-13 18:46:05

I wonder who has "told" your local judges. That's interesting, I thought they were all independent and tried to apply the law as best they could? Is it the DCJ who told them? Did the DJs not tell him to bog off on the basis he had never had to review a petition in his life? Or maybe it was an HMCTS civil servant? In which case I assume the response was unprintable?

Sounds like a local rumour. Or maybe your local DJs are just pragmatic and sensible. Most of them are, I find, but they still won't allow a petition through if the fact isn't made out.

Collaborate Tue 12-Nov-13 23:36:53

It was the district judge in charge. Not just a rumour. I heard it from one of the judges.
And btw it's a position that I heartily approve of.

lookatmybutt Wed 13-Nov-13 12:59:12

This happens sometimes (UB petitions getting turned down). Don't panic - it's not the end of the world.

Do your amendments in a lovely red pen, run it by a DIFFERENT solicitor and file.

You likely will need to go into more detail about your SBTX's behaviour and its impact on you. I completely understand how awkward it can be when neither of you no longer wish to be married to each other and you don't really want to rock the boat. A lot of times parties are able to agree to do this in advance (give more detail in the petition than they would have preferred).

I'm not legally trained so I think you should see a different solicitor. It seems that the other one gave you a bit of a bum steer and it really shouldn't be that hard.

lostdad Wed 13-Nov-13 13:30:25

Judges have considerable discretion and I've found that what happens in one court can differ wildly from what happens in another - both in terms of Practice and interpretation of the law, clearly as a result of the sort of thing Collaborate describes.

Judges are people and with the best will in the world they have individual ways of doing things.

NightOfTheCactus Wed 13-Nov-13 20:13:02

Thanks everyone. I rang the solicitor today and told her (somewhat hysterically blush) what had happened, so she told me to come in and she would do the session free of charge.

We've come up with more information to go on the petition. She looked over what I initially put again, and said that I had more than enough grounds and that she'd filed milder petitions in the past that had gone through no problem. She said that she's not had an UB petition sent back in years and she was really quite shocked and cross on my behalf.

Looking at it again, though part of it was conciliatory, I did give facts like not feeling emotionally supported, that he made excuses and refused to put time aside for just the 2 of us so we could rebuild our friendship, that I was repeatedly rejected physically - so it's not as if there wasn't anything for the judge to pin it on.

Now I've had to elaborate on the fact that I lived with a very angry man for most of my marriage. I really didn't want to go into it (not least because I've been putting up with a very angry rejected husband until the last month or so when he has stopped sulking and been prepared to be amicable for the sake of DD - now I risk the simmering anger, the sulking, the disrespectful way of speaking to me in front of DD all over again).

I've emailed him to tell him what has happened and said that the last thing I want to do is dredge up stuff from the past, but I'm only doing it so the divorce can go through sad

I have my suspicions he might be seeing someone else (though he's skirted around the question when I've asked) - maybe he'll also suggest I file on adultery...

Really could do without all this nonsense. DD has been so much more happy and relaxed over the last month, and I'm sure that's because she's not being round lots of tension anymore

Thanks for all your help and kind words everyone flowers

NightOfTheCactus Wed 13-Nov-13 20:25:26

Just spoken to him on the phone about it - he seems OK about it (though obviously he hasn't read what I've put yet...!) Hoping it's not going to stir up a hornet's nest!

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