'New divorce form "invites name and shame" of adulterers.' So ran a BBC News strapline on 11 August. This would be a worrying development, running contrary to good practice, the Law Society’s Family Law Protocol and Resolution’s approach. How much truth is there in this claim?
Before answering that question, it might be useful to offer some context, writes Tony Roe.
New divorce petitions and applications for civil partnership dissolution, each bearing a new statement of truth, have been introduced. Changes to such documents have been introduced by the Family Procedure (Amendment No. 2) Rules 2017 (SI 2017/741) which came into force on 7 August 2018, with certain transitional provisions until 4 September. The new forms are now available online via the Gov.uk site.
Either the new form or 'old format' petition can be used until 4 September, from which date only the new D8 can be used.
Of course, the old form simply required a signature. A statement of truth was only employed when one applied for decree nisi. So will such forms, incorporating statements of truth, mean that the application for decree nisi will be immediately redundant? The answer given by the Court Service is no. Apparently the main reason for change is security. One remembers the President of the Family Division’s judgment in Rapsidara v Colladon. The case concerned 180 petitions of Italian nationals issued in 137 different courts in England and Wales.179 of the 180 divorcing couples had falsely claimed that one of them lived at an address in Maidenhead, Berkshire.
The implication from the BBC item is that the old form may have somehow been less inviting to a petitioner contemplating naming a co-respondent in a suit based on an allegation of adultery.
I have taken an active interest in the gestation of the new petition. Early this year I was asked to comment, in confidence, on the draft as it stood at that time and made a number of observations. I explained to the Court Service that I was conscious that, what was a seven page form had become a 15 page document. However, I realised that this was largely due to the fact that there have been efforts to make the form much clearer and to increase the font size of the draft. One is mindful of the greater numbers of litigants in person within the family courts
At the beginning of March, I was fortunate enough to be invited to the Ministry of Justice for a workshop explaining more about its online divorce project. I joined representatives from the Law Society, Resolution and the Bar. Workshop attendees were particularly concerned that reference to any co-respondent and their identity was sensitively handled to ensure that there would be no unintended surge of such named third parties. There was also concern that there should no be prolixity in particulars supporting the fact of behaviour. Although no word limit, a series of three suggested boxes was demonstrated with the onus on the petitioner to add an addition sheet if the felt there should be more.
Just like the new form, the old petition offered a couple of opportunities to name such a third party. Box 4 read, 'Co-Respondent’s details, if any (please see the Guidance Notes for this form on the need to name the correspondent [sic])'. This should of course have read co-respondent. This typographical error has been with us a long time and no one has ever bothered to get rid of it until now. The two tick boxes then offered either, 'There is no Co-Respondent' or 'There is a Co-Respondent whose details are as follows:'. The Prayer then has a tick box to enable the petitioner to seek a costs order against the Co-Respondent.
The old form did have eight pages of 'supporting notes for guidance', to be found in an entirely separate document. The notes provide, 'You do not have to name the person with whom your spouse is alleged to have committed adultery unless the allegation is likely to be disputed', but that’s it.
Compare the old approach with the new petition: it has clear notes in the margin alongside. The rather bare approach of the old notes becomes, at Pt 7: 'It is not normally necessary to name the person your spouse committed adultery with; you should only consider doing so if the petition is likely to be disputed. If you include them you must provide their address in section 8 and the court will send them a copy of your petition to give them a chance to respond. Your petition could be delayed if they do not respond and it could cost you more money.' The prayer for costs in the new petition is much the same as the old.
So does the new divorce form inviting naming and shaming of adulterers any more than the old one? I would submit that it doesn’t. Oddly, none of the solicitors referred to in the BBC item talk about 'naming and shaming'. Those of a cynical nature might put this down to a slow news day story, and one without full consideration of the facts, at that.