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  • 1. + Divorce LG1 Dr. Keith Hotten
  • 2. + Divorce is Popular In 1972 there were 354 divorce decrees pronounced in Hong Kong - By 2012 this figure is close to 22,000 and rising. Thus in 2012 Divorce affects 46,000 adults and perhaps as many as 20,000 children? Taking the wider family into account it could be that divorce currently affects around 100,000 per year in Hong Kong annually Do lawyers need to know why?
  • 3. + Timeline  File & Serve Petition or Application (Mediation)  Form E - FDR - 28 days before First Appointment  Form J - CDR -14 days before First Appointment  First Appointment and/or Child Dispute Resolution (CDR) – PD 15.13 (Decree Nisi)  Adjourned First Appointment  FinancialDispute Resolution (FDR) – PD 15.11 listed 3-hours  Trial (or 6 weeks from Decree Nisi – Decree Absolute)
  • 4. + Jurisdiction and Habitual Residence Matrimonial Causes Ordinance (Cap 179) s 3(a)–(c).  The Court of First Instance or the District Court has jurisdiction in divorce proceedings if: (1)either of the parties to the marriage was domiciled in Hong Kong at the date of petition; (2)either of the parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of the petition or application; or (3)either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application
  • 5. + Substantial Connection  Leading Case B v A [2007] 4 HKC 610, [2007] HKFLR 138, [2008] 1 HKLRD 43  As to the meaning of the phrase ‘substantial connection’, Briggs J said that it was to be given its ordinary meaning. It is not a term of art.  In my view, that must be right. As such, it would be wrong to burden the phrase with qualifications, for example, by specifying inter alia that a person must ordinarily reside here for at least a year before he can be considered to have a substantial connection with Hong Kong.  An accumulation of such qualifications would reduce the phrase to a term of art and that, I believe, would be contrary to the legislative intent.
  • 6. + In Savournin v Lau Yat Fung [1971] HKLR 180, the first reported authority on the meaning of s. 3(c) Briggs J confirmed that the subsection had established a new basis for determining the personal law of the parties to a marriage; in short, it had established an additional ground of jurisdiction. (i) Under s. 3(a), jurisdiction is established if, at the time of the issue of proceedings, either party considered Hong Kong to be his or her permanent home; that is, his or her place of domicile.
  • 7. +  (ii)   Under s.3(b), jurisdiction is established if, at the time of the issue of proceedings, either party had been usually living in Hong Kong for the previous three years; that is, had been habitually resident here for that period of time.  (iii)   Under s.3(c), jurisdiction is established if, at the time of the issue of proceedings, even if neither party considered Hong Kong to be his or her permanent home or had been usually living here for the preceding three years, nevertheless one or other of them had a substantial connection with Hong Kong.
  • 8. +That being the case, if the phrase is to be given awider meaning than domicile or three yearsordinary residence, whether a party to a marriagedid or did not have a "substantial connection" withHong Kong at the time of the institution ofproceedings can only be determined in each caseby having regard to the facts of that case andcoming to a broad conclusion based on those facts.Per Hartmann J.
  • 9. + Nature and Grounds for Divorce‘ … Parliament has decreed: “If the marriage has broken down irretrievably, let there be a divorce”. It carries no stigma, but only sympathy. It is a misfortune which befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits. Nearly every case goes uncontested. The parties come to an agreement, if they can, on the things that matter so much to them. They divide up the furniture. They arrange the custody of the children, the financial provision for the wife, and the future of the matrimonial home. If they cannot agree, the matters are referred to a Judge in chambers.  Lord Denning MR in Wachtel v Wachtel  [1973] EWCA Civ 10:
  • 10. + Ground for Petition or Application for Divorce Matrimonial Causes Ordinance (Cap 179) s 11  The sole ground on which a petition or application for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably  Proceedings for divorce must be instituted either by a petition for divorce or by a joint application for divorce, s 11(b).
  • 11. + Petition and Five ‘Facts’ By the Matrimonial Causes Ordinance (Cap179), s 11A Proof of ground for petition  (1) a petition for divorce may be presented to the court by either party to a marriage;  (2)the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following grounds:
  • 12. + MCO (Cap 179) s 11A (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the respondent consents to a decree being granted; (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition; (e) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
  • 13. + Joint Application By the Matrimonial Causes Ordinance (Cap179) s 11B Proof of ground for application, etc  Under the joint application procedure, an application for divorce must be made to the court jointly by both parties to the marriage, s 11B(1)  The court hearing an application for divorce shall not hold the marriage to have broken down irretrievably unless it is satisfied as regards either or both of the following facts:
  • 14. + (1)that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; and (2) that not less than 1 year prior to the making of the application a notice under subsection (3), signed by each of such parties was given to the court and that the notice was not subsequently withdrawn.
  • 15. +Matrimonial Causes Rules (Cap 179A), r 9(12) and Appendix ‘Notice’ Form 2E. Either party to a marriage may at any time give to the court a written notice signed by both of them of their intention to apply to the court to dissolve their marriage The notice under this subsection shall be in such form as is for the time being specified in the rules made under s 54. See also rr 9(3) and 33(2B), Form 2C and (where there are children of the marriage) Form 2D.
  • 16. + Grounds for Joint Application Two ‘Facts’  That the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the making of the application: Matrimonial Causes Ordinance (Cap 179), s 11B(2)(a). Where a court on granting a decree nisi for divorce is satisfied with the requirements of this provision, it may, on an application being made by either party to the marriage, at any time before the decree is made absolute, rescind the decree if it is satisfied by the party that he or she has been misled by the other party, whether intentionally or unintentionally, about any matter which he or she took into account when deciding to make the application for divorce, s 15C(2);
  • 17. +A notice signed by each of the parties was given to the court and that the notice was not subsequently withdrawn, s 11B(2)(b). The parties to a marriage may at any time give to the court a written notice signed by each of them of their intention to apply to the court to dissolve their marriage, s 11B(3)(a). Such notice must be in such form as is for the time being specified in the rules made under s 54, s 11B(3)(b). The specified form is set out in the Matrimonial Causes Rules (Cap 179 A) r 9(12) and Appendix, Form 2E.
  • 18. + Adultery  The mere fact that the respondent has committed adultery is not enough to satisfy the test of an irretrievable breakdown of marriage: Anderson v Anderson (1972) 117 Sol Jo 33.  Thepetitioner must also find it intolerable to live with the respondent: Matrimonial Causes Ordinance (Cap 179) s 11A(2)(a).
  • 19. + Definition of Adultery For the purposes of relief in the matrimonial jurisdiction, adultery means voluntary sexual intercourse between a married person and a person of the opposite sex, who is not the other spouse during the subsistence of the marriage. If a wife is raped by another man, it is not adultery by her: Redpath v Redpath and Milligan [1950] 1 All ER 600, CA; Clarkson v Clarkson (1930) 46 TLR 623; Coffey v Coffey [1898] P 169.
  • 20. +To constitute adultery as a ground of divorce, somepenetration of the woman by the man must be foundto have taken place, but it is not necessary that suchpenetration should constitute a complete act ofintercourse.The definition is similar to that of ‘consummation’ innullity casesThe act of sexual intercourse need not becomplete, but an attempt without penetration isinsufficient: Dennis v Dennis (Spillet cited) [1955] P153, [1955] 2 All ER 51, CA; Sapsford v Sapsford andFurtado [1954] P 394, [1954] 2 All ER 373
  • 21. +  Masturbation of co-respondent by respondent; no adultery, following the dicta in Rutherford v Richardson [1923] AC 1 at 11, HL.  Seealso Thompson (otherwise Hulton) v Thompson [1938] P 162 at 173, [1938] 2 All ER 727 at 732, affd [1939] P 1, [1938] 4 All ER 1, CA. … but it would, one assumes, constitute unreasonable behaviour!!
  • 22. + Duty of the Court  In any proceedings for divorce, it is the duty of the court to inquire so far as it reasonably can, into the facts alleged by any party to the proceedings: Matrimonial Causes Ordinance (Cap 179) s 15(1).  Ifthe court is satisfied on the evidence of any such fact then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it must, subject to where leave was obtained by misrepresentation or concealment s 15(3) grant a decree nisi of divorce, s 15(2).
  • 23. + Divorce One-Year Rule Restriction on petitions within one year of marriage Matrimonial Causes Ordinance (Cap 179) s 12(1) The general rule is that no petition for divorce may be presented to the court unless, at the date of presentation of the petition, one year has expired since the date of the marriage. This is known as the specified period.
  • 24. + Applications for Leave to Petition within One Year Matrimonial Causes Ordinance (Cap 179) s 12(2) A judge of the court may, on an application made to him, allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. In determining the application, the judge shall have regard to the interests of any child of the family within the meaning of s 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) and to the question of whether there is reasonable probability of a reconciliation between the parties during the specified period.
  • 25. + Hearing the Petition By the Matrimonial Causes Ordinance (Cap 179) s 15, in any proceedings for divorce, it shall be the duty of the court to inquire, in so far as it reasonably can, into any facts alleged by any party to the proceedings. If the court is satisfied on the evidence of any such fact as is mentioned in s 11A(2) or 11B(2), then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, unless there is evidence of any deliberate misrepresentation or concealment, grant a decree nisi of divorce.
  • 26. + Unreasonable Behaviour Where there is consideration of the effect of any behaviour, it is its subjective effect on the particular petitioner: Katz v Katz [1972] 3 All ER 219, [1972] 1 WLR 955. It is the state of the relationship between the parties that is examined, not whether the conduct is good or bad: Carew-Hunt v Carew-Hunt (1972) Times, 28 June. Therefore, the court does not pass judgment on marital conduct but only considers the impact of a respondent’s behaviour on the petitioner.
  • 27. + Determining the effect of the respondent’s conduct involves a consideration not only of the behaviour of the respondent but of the character, personality, disposition and behaviour of the petitioner. Ash v Ash [1972] Fam 135, [1972] 1 All ER 582
  • 28. + The test to be applied prima facie is an objective one  Lindsay v Lindsay [1983] 2 HKC 302. In considering what is reasonable, the court, in accordance with its duty to inquire into the facts alleged as far as it reasonably can, will have regard to the history of the marriage and to the individual spouses before it, and from this point of view, would have regard to the petitioner and the respondent in assessing what was reasonable; the fewer prior assumptions the court makes about them the better.
  • 29. + Particulars of Unreasonable Behaviour  Particularsof unreasonable behaviour must be stated in detail in the petition for divorce, although there is now a growing acceptance by the courts for less antagonistic ‘watered-down’ or mild particulars of unreasonable behaviour to avoid animosity between parties and cross decrees of unreasonable behaviour where both parties actually consent to a divorce.
  • 30. + ‘Watered-down’ particulars of unreasonable behaviour include particulars such as:  therespondent not demonstrating love and affection,  failure to communicate,  andthe respondent having a different sense of values and attitudes. Currently the courts in HK (as in UK and elsewhere) will require little more than this to conclude“irretrievable breakdown”
  • 31. + One Year of Separation with Consent Matrimonial Causes Ordinance (Cap 179) s 11A(2)(c)  Itmay be found that a marriage has broken irretrievably where the petitioner satisfies the court that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the respondent consents to a decree being granted
  • 32. + Two Years of Separation Matrimonial Causes Ordinance (Cap 179) s 11A(2)(d)  The court may find that a marriage has broken down irretrievably where the petitioner satisfies the court that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.  In computing the two-year period, the day of separation is excluded from the computation: Warr v Warr [1975] 1 All ER 85, [1975] 2 WLR 62.
  • 33. + However … 6-Month Rule Matrimonial Causes Ordinance (Cap 179) s 15A (3)(a) & (b); & (5) Provisions to encourage reconciliation (can be harsh in HK if nowhere else to go)  For an application for decree nisi on the grounds of adultery the petitioner must not be living with the respondent for a period of more than six months preceding the application since the petitioner is relying on the fact that it is intolerable to live with the respondent (see Ordinance)
  • 34. + The petition should contain no allegation of fault against the respondent (Chapman v Chapman [1972] 3 All ER 1089, [1972] 1 WLR 1544, CA), and in the ordinary way, there should be no order for costs in these cases. There is no need for any consent by the respondent, and indeed the respondent cannot pray in his answer for the petition to be rejected but must limit his prayer of rejection to those matters pleaded in the petition which he denies, Parsons v Parsons (1975) Times, 15 April. There are, however, statutory restrictions to the grant of a decree see Matrimonial Causes Ordinance (Cap 179) s 11A(2)(d).
  • 35. + Hearing of Application  All applications for divorce must be begun in the Family Court - Section 10A Matrimonial Causes Ordinance (Cap 179)  Theapplication must be filed in the District Court and, unless otherwise directed, will be heard by a judge in chambers - Matrimonial Causes Rules (Cap 179A) r 5(2), (5).
  • 36. + Petitions and Joint ApplicationsAll matrimonial causes, other than an applicationfor leave to present a petition for divorce before theexpiration of one year from the date of the marriageor a joint application, must be commenced bypetition, and presented to the District Court:Matrimonial Causes Rules (Cap 179A) rr 9(1)(a),12(1)A joint application is to be made by originatingapplication and is also presented to the DistrictCourt, rr 9(1)(b), 12(1)
  • 37. + Filing of Petition or Joint Application The petition must be presented or the joint application made, by filing it, together with any statement, report or affidavit required in the registry: Matrimonial Causes Rules (Cap 179A) rr 9(3) or (4), 12(5). See Practice Direction 15.1 in relation to filing a petition On the filing of the petition or joint application, the Registrar must enter the cause in the books of the court, r 12(6). Every copy of the petition for service must be sealed and accompanied by a notice in the prescribed form: Appendix Form 3 (notice of proceedings). Form 4 (acknowledgement of service) is to be attached, r 12(7) Both of which are addressed to the respondent and in the case of a petition for service on a respondent spouse, the petition must also be accompanied by a copy of any statement, report and affidavit filed by the petitioner on filing the petition, r 12(7)
  • 38. + Marriage Certificate Matrimonial Causes Rules (Cap 179A) r 12(2) Unless otherwise directed, on an application made ex parte, a certificate of the marriage to which the cause relates, that is either the original certificate or a certified copy of the marriage certificate, must be filed with the petition or the joint application as the case may be.
  • 39. + Contents of Petitions and Joint Applications Matrimonial Causes Rules (Cap 179A)  Unlessotherwise directed, every petition and every joint application must contain the information required by the form prescribed by the Appendix Forms 2, 2C.  Theinformation must be as near as may be in the order set out in these forms and any further or other information required by those rules, r 9(2). The petition must contain …
  • 40. + Matrimonial Causes Rules (Cap 179A) Appendix Form 2 [2]  (1)names of the parties to the marriage and the place and date of the marriage: Appendix, Form 2 [1]  (2) the address within Hong Kong at which the parties last cohabited, or, if it be the case, that there has been no cohabitation in Hong Kong
  • 41. + Matrimonial Causes Rules (Cap 179A) Appendix, Form 2 [4] to [8]  (3) a statement that either of the parties is domiciled in Hong Kong or, as the case may be, the petitioner’s and respondent’s occupations and residential addresses, respectively, see Appendix, Form 2 [3]  (4)certain statements as to the children, then living, of the family – see also s.18 MPPO (Cap 192)
  • 42. + Matrimonial Causes Rules (Cap 179A) Appendix, Form 2 [9]  (5)whether there have not been … any, and if so what, previous proceedings with reference to the marriage or to any children of the family, stating the nature of the proceedings, the date and the effect of any decree or order made in such proceedings and, in the case of proceedings with reference to the marriage, whether there has been any resumption of cohabitation since the making of the decree or order:  (6)a statement as to details of any agreement or agreement made or proposed to be made between the parties for the support of the respondent and the children of the family, or that no such agreement or arrangement has been made: Appendix, Form 2 [10]
  • 43. + Statements in Petition and Joint Application as to Children of the Family Matrimonial Causes Rules (Cap 179A) Appendix, Forms 2 [4], 2C [4].  Thepetition or joint application must state the full names of every living child of the family and the date of his birth (or that he is over 18), or that there are no living children of the family.  Form 2A Cert as to Reconciliation etc Go to Appendix and look at these Various Forms
  • 44. + Contents of the Prayer Matrimonial Causes Rules (Cap 179A) Appendix, Forms 2, 2C. The petition or joint application must conclude with a prayer setting out particulars of the relief claimed, whether it be a dissolution of the marriage, judicial separation, or whatever it may be.
  • 45. + A petitioner who seeks custody of a child or children of the family must include in the prayer a claim for custody of the child or children and name them, adding any application for a declaration that the respondent is unfit to have such custody: Appendix, Forms 2, 2C.
  • 46. +  The prayer should also contain any applications that are to be made for ancillary relief: Appendix, Forms 2, 2C.  Ancillary relief means an avoidance of disposition order, a lump sum order, an order for maintenance pending suit, a periodical payments order, a secured periodical payments order, a settlement of property order, a transfer of property order, a variation of settlement order, or a variation order, r 2(2).  Any application by a petitioner for an order for maintenance pending suit, a periodical payments order, a secured periodical payment order, a lump sum order, a settlement of property order, a transfer of property order or a variation of settlement order must be made in the petition, r 68(1).
  • 47. + Signature and Statement of Truth Practice Direction 15.12 @ L Statements of Truth (Order 41A) Practice Direction 19.3 at [3] (Order 18, rule 6(5))  Every petition that is settled by counsel must be signed by him. If not settled by counsel, it must be signed by the petitioner’s solicitor in his own name or the name of his firm or by the petitioner if he sues in person
  • 48. + Filing of Pleadings and Directions for Trial Matrimonial Causes Rules (Cap 179A) r 20  No pleading may be filed without leave after directions for trial have been given  As to directions for trial, see r 33.
  • 49. + Service of Petition  In general, a copy of every petition must be served personally or by post on every respondent or other parties to the proceedings: Matrimonial Causes Rules (Cap 179A) r 14(1).  Thisis subject to the provisions of r 14 as to substituted service and dispensing with service, r 14(1). There is no requirement as to the class of postage required. Service of a petition is to be effected by the petitioner, r 14(2)
  • 50. + Matrimonial Causes Rules (Cap 179A), r 14(5)  Forthe purposes of the foregoing provisions, a copy of a petition is deemed to be duly served if an acknowledgement of service in the prescribed form (Matrimonial Causes Rules (Cap 179A) Appendix, Form 4), is signed by the party to be served or by a solicitor on his behalf and is returned to the registry, and where the form purports to be signed by a respondent spouse, his signature is proved at the hearing.  Gilbertv Gilbert and Brooks [1948] P 314, [1948] 2 All ER 64, CA.
  • 51. +  Where a copy of a petition has been sent to a party and no acknowledgement of service has been returned to the registry, the Registrar, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document is to be deemed to have been duly served on him, r 14(6).
  • 52. + Affidavit of Service  Where a copy of a petition has been served on a party personally and no acknowledgement of service has been returned to the registry, service is proved by filing an affidavit of service showing, in the case of a respondent, the server’s means of knowledge of the identity of the party served, r 14(7).
  • 53. + Respondent’s Statement as to Arrangements for Children Matrimonial Causes Rules (Cap 179A) r 15B A respondent spouse who is served a statement as to the arrangements for children in accordance with the Matrimonial Causes Rules (Cap 179A) r 9(3) may, at any time before the judge makes an order, under the Matrimonial Proceeding and Property Ordinance (Cap 192) s 15, file in the court office a written statement of his views on the present and proposed arrangements for the children, and serve a copy thereof on the petitioner
  • 54. + Defence Matrimonial Causes Rules (Cap 179A) r 18(1) Within 21 days after the expiration of the time limited for giving notice of intention to defend a respondent or other party to the proceedings must file an answer to the petition (1) if he wishes to defend the petition or dispute any of the facts alleged in it; or (2) if he is the respondent spouse and wishes to make in the proceedings any charge against the petitioner in respect of which he prays for relief; or (3) if he is the respondent to a petition to which certain provisions of the Matrimonial Causes Ordinance (Cap 179) apply relating to opposition of a decree nisi on the basis of financial or other hardship (s 15B applies to a petition alleging two years’ separation opposed on the ground of grave financial or other hardship) and he wishes to oppose the grant of a decree on these grounds … shall, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition.
  • 55. + Right to be Heard on Ancillary Questions without Filing an Answer  Even if he does not file an answer, a respondent may be heard on any question of custody of, or access to, any child of the family, any question whether a supervision order should be made as respects any such child and any question of ancillary relief.  MatrimonialCauses Ordinance (Cap 179) s 48; Matrimonial Causes Rules (Cap 179A) r 49(1).
  • 56. +  Failureto file an answer to allegations in the petition does not mean that when the court grants a decree on the petition it must have accepted those allegations in their entirety. It is just an indication that there are grounds for the petition and the respondent decides not to defend BCA v IOF 10 April 2006, HCMP 1901/2005 CA.
  • 57. + Special Procedure Undefended Cause Practice Direction 15.4In cases to which the special procedure applies,application for directions for trial must be made inthe Form SC 370 supported by an affidavit in Form21 in the Appendix to the Matrimonial Causes Rules(printed as SC 371).The petitioner may, at the same time, file anycorroborative evidence on which he intends to rely.The Registrar will give directions for trial byentering the cause in the special procedure list, andwill thereafter consider the evidence filed by thepetitioner.
  • 58. + The objectives of the special procedure list are simplicity, speed and economy. Accordingly the court should not approach a special procedure divorce in an over-meticulous or over-technical manner and should prefer substance to mere form. Provided that the petition and the affidavit satisfy the essential statutory requirements, it is irrelevant that there are surplus matters in the petition or affidavit R v Nottingham County Court ex P Byers [1985] 1 All ER 735, [1985] 1 WLR 403.
  • 59. + New Mandatory FDR Procedure  Save for applications for nominal maintenance and cases where the parties have reached agreement on ancillary relief to which Practice Direction 15.11 shall not apply: (i) a notice of intention to proceed with an application for ancillary relief made in the petition, answer or in a joint application; or (ii) a subsequent application for ancillary relief, shall be made by notice in Form A (Form 25) as annexed to the Practice Direction.
  • 60. +  Ifthe Registrar is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to the decree sought and any costs prayed for, and that there are no children of the family to whom s 18 of the Matrimonial Proceedings and Property Ordinance (Cap 192) applies, he will give a certificate to this effect. A day will thereafter be fixed for the pronouncement of a decree by a judge in open court which neither the applicant nor his or her solicitors are required to attend. Solicitors acting for the applicant will only be required to file an application for decree nisi on that fixed date. A copy of the Registrar’s certificate and notification of the day and place so fixed will be sent by the court to each party, or his solicitor, if he is legally represented.
  • 61. + END NB Read PD 15.11 on FDR for LG3