McGregor

The new Matrimonial Proceedings Rules came into effect on September 18, 2006, with the prospect of reducing the time lag for obtaining divorces. Instead, six months later, new complaints have surfaced, which suggest that some fine-tuning is required and perhaps further sensitisation as to how the rules are intended to operate.

In this article, three areas of difficulty are identified and changes are proposed, which may reduce the delays and increase the efficient use of the new rules.

The Notice to Appear

Under the old Matrimonial Causes Rules, a petition had to be served along with a notice to appear, which was signed by the court's registrar.

The new rules eliminated the need for the notice to appear. When a petition is filed in the Supreme Court Registry, the original petition is retained by the court and a claim number is assigned to it. The copies of the petition must then be sealed, certified and returned to the petitioner for service on the respondent.

Despite the apparently simple nature of this procedure, sealed petitions take an inordinately long time, sometimes upwards of one month, to be returned to the petitioner for service. It is suggested that petitions could be returned to the petitioner on the day when the petition is filed. Could an indicative timeframe be established for the return of sealed petitions?

The Acknowledgment of Service

The new rules require the petitioner to serve a form of acknowledgment of service on the respondent along with the petition and the affidavit accompanying the petition (if there are relevant children of the marriage). There is no requirement under the rules for this form to be filed along with the petition.

The respondent is directed to complete and file the form at court within 14 days of being served. The form contains a number of questions, including whether the respondent wishes to defend the whole, or any part, of the petition. In addition, it allows the respondent to state what facts alleged in it are being challenged.

The complaint is that the form is unduly complicated. It could set out clearer guidelines as to how it is to be completed. In this way, respondents would be better able to complete the forms without the assistance of attorneys-at-law.

The Default Procedure

Most petitioners are reluctant to go to court for the hearing of the decree nisi. For this reason, the procedure for obtaining a decree nisi without having the petitioner attend court was a welcome change under the new rules. The petitioner does not have to attend court and recite the facts set out in the petition and statement of arrangements for children, when there were no matters affecting the welfare and upbringing of a child which requires the court's intervention.

The procedure is under-utilised because of the delays in bringing applications before a judge for consideration. The suggestion is that a time limit (e.g., three days) could be established by the court's registry within which applications, which do not require a hearing, are to be placed before a judge.

These matters are highlighted because divorces may still take between six and nine months to be granted and, by addressing these points, that time could be greatly reduced.