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NSW Fiancee's Ex Contested Divorce Without Serving Response?

Discussion in 'Family Law Forum' started by 2012s4, 11 October 2016.

  1. 2012s4

    2012s4 Active Member

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    Alright so here's the deal.

    My fiancee has been separated from this guy for well over a year now. She served him papers which of course he didn't sign. She hadn't heard from him and went in for her divorce hearing today only to find out he contested claiming "it's a total lie". Now, I read online from several sources she has to be served this response before the court hearing. She was served no papers and had 0 clue the divorce was being contested. Is this legal? If so how?

    Now they have a hearing scheduled for the end of Nov. What kind of evidence does she need to bring to get this divorce through? We don't want this to be delayed any longer. She's been getting SS for her kids and herself since she currently has no income. They have separate bank accounts and no money being shared between them (he won't even pay child support).

    She also has two assault charges on him one dating back to February where it was documented he broke into her home. Will this be enough to get the divorce granted on the spot? Any other important things she should bring to prove they have been separated over a year? Is there a chance the contest will get thrown out since she was never served with the papers?
     
  2. AllForHer

    AllForHer Well-Known Member

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    To make a divorce decree, the Court only needs to be satisfied that the marriage has broken down irretrievably, which is shown by 12 months of separation.

    "It's all lies" doesn't say much about what he's contesting in the divorce. Has he contested the date of separation?
     
  3. 2012s4

    2012s4 Active Member

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    I wasn't at the court, but my fiancee claims that is what he wrote to contest. I think he is contesting the separation claiming it's only been a few months (a complete lie obviously). So I'm wondering what she should bring in as proof.

    We want this divorce granted next month and I think we have plenty of legal evidence but she doesn't have money for a lawyer so we're trying to figure out what all the court will want to see to grant divorce on the spot. As well as the stuff I mentioned above would phone logs be good?

    She has called him only a handful of times in the past year to let her kids speak to him or whatever else. He has at points called her phone incessantly with no answer. There has also been long periods of 0 contact.

    And I'm still curious if it's legal for him to contest without serving her papers that he is doing so which is what happened.

    She has been receiving social security for well over a year since their seperation and as well has two assault charges against him, one dating back to feb for breaking and entering, and an avo against him. And their bank statements have been completely seperate, seperate mailing addresses etc..

    Will that be enough to guarantee divorce? I don't know how these things really work, but I can't see why it would be delayed any further with all that evidence. I just want to be sure we got this locked down.
     
  4. AllForHer

    AllForHer Well-Known Member

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    The main issue is going to be proving the date of separation was longer than 12 months ago.

    A current lease agreement can show they were and have been living separately and apart.

    An affidavit from you or another friend/family member confirming that they know them to have separated is another option.

    Proof from Centrelink that she is not listed in a relationship or that they have separated their Medicare cards can also help, or a child support assessment.

    Obviously, phone logs and a DVO wont show the date of separation. Even parties with DVOs can remain married, but in the same token, it won't hurt to have it ready for presentation if the Registrar asks for it.

    Regarding legality of non-service of the response, this is a procedural step, rather than a matter of legal versus illegal. The Court needs to be satisfied that both parties are aware of and have full disclosure of the proceedings. Since the divorce has not yet been granted and she now has the response available to her, the Court shouldn't have an issue moving ahead with the divorce application, at least beyond the procedural steps.

    I doubt you'll need a lawyer for this. It's a pretty simple process to get a divorce, particularly if the only evidence he's provided is "It's all lies".
     
  5. 2012s4

    2012s4 Active Member

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    I'm confused by the non-service of response still. The thing is she had a court hearing earlier today. This was supposed to be the hearing where the divorce would be granted had he not contested. It's my understanding he has to provide her notice of contest prior to this, but maybe I'm not understanding the law properly.
     
  6. AllForHer

    AllForHer Well-Known Member

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    The short answer is yes, he should have served his response on your spouse prior to the hearing.

    However, I think you're getting stuck on why his tardiness of service didn't just result in his response being ignored by the Court and the divorce subsequently granted.

    If the Court punished the ex's tardiness by ignoring his evidence all together, then the ex would have been denied his right of procedural fairness to have his side of the story heard by the Court.

    If the Court had accepted the ex's response and allowed the matter to proceed without your spouse having been served the response beforehand, then she would have been denied her right of procedural fairness to present evidence contradicting the facts presented by the other party.

    So, rather than deny procedural fairness to either party by proceeding with the matter, the Court adjourned it to a later date so he can serve the response properly, and she can prepare evidence to contradict that.

    Tardiness in service of documents earns a slap on the wrist and in some cases, an order for the tardy party to pay the legal costs of the other, but it doesn't negate either party's right to procedural fairness. Service of documents is a rule designed to protect procedural fairness for both parties. It is not a law that, if broken, is punishable by the denial of procedural fairness all together.

    Does that make sense?
     
  7. 2012s4

    2012s4 Active Member

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    Yes, that makes a lot of sense. Thanks for the reply. Knowing this person, he probably did it on purpose knowing that it would further delay the inevitable divorce. He is persistent for some reason in doing everything in his power to stop that. It's unfortunate we are dealing with a mentally unwell person because this is far from the first time he has caused issues in my or my fiancees life.

    The only thing I'm concerned about really is that he has lots of money. He will probably hire a good lawyer and try to work the law any way he can by finding some kind of reason why they haven't been seperated a year (completely false, but nonetheless it has to be in the courts opinion doesn't it).

    The biggest weakness we have going against us is that last year, shortly before I met my fiancee (I believe around July-August 2015) she was in a bad living situation after moving out from being with him once again. She had been separated at this point for the better part of the last 5 or so years actually, but had reluctantly gone back for her children and because of her poor financial situation. She left him once again and separated for good I believe in May of 2015 and was living in her dad's extra property.

    Unfortunately her dad was in the process of selling and she was being put in a bad situation of needing to find a new living situation fast. Her ex offered to help (obviously in the hopes of saving the marriage) and she reluctantly accepted. She had 0 interest in continuing the relationship at this point, but was in between a rock and a hard spot and naively accepted his help though was making no such agreement of working on their relationship.

    So what happened after this was he helped her to buy a house. What I do know is that his name was NOT on the property. It was split between my fiancee and her ex's sister legally This was mainly because he was paranoid about having anything in his name in that she might take it during the divorce...as far as I know he has nothing in his name for this same reason and also doesn't work as he comes from an extremely rich family which is helping him to avoid paying child support because in the governments eyes he has no income or assets.

    Anyhow, during the time she lived there he never lived there. I wonder if we can back this up through mailing addresses or something?

    She moved in late last year a month or so after we started dating. Of course right when I found out what was going on I told her she needed to get out of there, but this was still early in our relationship. She quickly learned her lesson after he had broken into the house and assaulted her which is well documented in a police report and should also serve as reference he was not living there. However this was not until February.

    Since February she moved out and has been living with family again. Obviously we can get affidavits to back this all up, pull Centrelink payments/marital status as separated, bring in the police reports for assault and AVO against him (which should show in my mind she wasn't in or pursuing an active relationship with him), etc..

    I don't know what we can do to prove he did not live at the house and my fiancee had made no such agreement by moving in there to work on rebuilding a relationship with him. His name was not on the property but he assisted in the process (so I'm not sure on all the details there) and his sister was the legal owner to half and guarantor.

    It was a very foolish mistake on my fiancees part no doubt, but she was in a tough place and obviously had no idea of what was to come or the consequences. I don't want this house mess to somehow stuff up this hearing and cause it to take longer. It's important for both of us that we end this now and get this nut out of our lives. He doesn't even call his kids, he simply wants to torture my fiancee for as long as he possibly can.
     
  8. AllForHer

    AllForHer Well-Known Member

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    Look, the Court doesn't like to force parties to stay married against their will. That's why it doesn't need a signature from both parties on an application for divorce. If she doesn't want to stay married, then divorce is inevitable, it's really just a matter of whether it happens now or a little further into the future. A lawyer, even a well-paid, top-end lawyer, counsel and all, cannot stop a divorce indefinitely.
     
  9. 2012s4

    2012s4 Active Member

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    Yeah, I know it's inevitable. I'm just worried about it getting dragged out.

    I'm actually a US citizen and me and my fiancee were planning to apply for a prospective marriage visa so that is why this is very important to us. Until the divorce is granted we can't even apply.

    I'm hoping that they will just dissolve it next month, but I'm worried they'll string it on so I want to come prepared with everything we can.
     

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