Is the concern about the new divorce form a storm in a teacup?
By:5 commentsAugust 16, 2017
Last Friday various national news outlets, including the BBC, ran a story about the new divorce petition form, suggesting that it encouraged petitioners to ‘name and shame’ adulterers. But is the concern about the form just a storm in a teacup?
To answer the question we must begin with the law, and a short history lesson.
First though, a quick explanation of terminology, for the benefit of non-lawyers. The document that commences divorce proceedings is now called an ‘application’, but until recently it was always known as a ‘petition’ (and, confusingly, is still referred to as a petition in the application form), hence the person issuing the divorce was, and still is, called the ‘petitioner’. The other party to the marriage is called the ‘respondent’, and if the person with whom the respondent has committed adultery is named, they are called the ‘co-respondent’.
When I began practising back in the early 1980s anyone issuing divorce proceedings on the basis of adultery had to name the co-respondent, if they knew their identity. This rule was changed in 1991 (if not before – I can’t recall) so that the petitioner no longer had to name the co-respondent, but could do so if they wished. If they are named, then they must be made a party to the proceedings, which means that they will be served with the divorce papers, and given the opportunity to respond, confirming or denying the adultery. This remains the position now.
So why would a petitioner name a co-respondent? Well, I suppose there are several possible reasons, but really only one of them is a good reason. Obviously one possible reason is to extract some sort of revenge – the ‘naming and shaming’ mentioned above, although any thought that this will lead to the co-respondent being publicly humiliated are sadly mistaken – no one beyond the parties and the court staff are likely to know anything about it. Another possible reason is to prove the adultery, but in reality adultery is never proved by admissions from co-respondents. The only good reason to name the co-respondent is if the petitioner wishes the court to order them to pay, or contribute towards, the cost of the divorce. I suppose this could also amount to a sort of revenge but, as we will see next, it is not likely to be a good idea (the costs can be claimed from the respondent anyway).
So why is naming a co-respondent a bad idea? Well firstly, it is going to make things unnecessarily more complex. As I mentioned above, the co-respondent will be made a party to the proceedings. However, it is highly likely that they will be unhappy about this, and will respond by not cooperating with the procedure. For example, they may not acknowledge receipt of the divorce papers, which will require the petitioner to go to the time and expense of proving that they received them. It is also likely to unnecessarily increase conflict and animosity. The respondent is also highly likely to be unhappy at the co-respondent being named, and therefore the chances of settling matters relating to children and property by agreement are going to be reduced. Further to this, any judge dealing with the case is likely to take a dim view of a petitioner naming a co-respondent without good reason. In view of these matters most family lawyers, and that certainly included myself when I was practising, will strongly advise their clients against naming co-respondents (see for example paragraph 7 of this post by Marilyn Stowe back in 2012).
OK, so what has changed with the new form? Well, as indicated above, the law has not changed at all. The concern arises from the fact that the new form is designed to be easier to use by petitioners who do not have the assistance of a lawyer. One of the changes to the form is that the section where the co-respondent can be named has changed. Whereas previously it simply had a box for ‘co-respondent’s details, if any’, now it has a slightly more prominent section headed “Adultery cases only – details of the person your partner committed adultery with (co-respondent)”. Notes contained on the form (rather than in separate guidance, as previously) do make it clear that it is not normally necessary to name the co-respondent, but it is felt by some that the new section is an invitation to petitioners to name co-respondents, and will therefore lead to more co-respondents being named.
I am not really sure that the form will have this effect. What will lead to more co-respondents being named is more petitioners proceeding without legal advice, not the wording in the form. As I indicated above, many petitioners want to name and shame adulterers, and are only put off from doing so by their lawyers. I certainly recall having that conversation with my clients many times over the years. The problem, if there is going to be one, stems from the lack of legal aid, rather than from the wording of the new form, which isn’t really all that different from the wording on the old form.
Of course, none of the above would be a problem if we had a no fault divorce system, in which petitioners would no longer have to rely upon such archaic concepts as adultery, but that is another story.
You can find the new divorce application form, here. Section 7 sets out the reason for divorce and includes a box (section 7.2) where details of the adultery, including the name of the co-respondent, can be given, and section 8 is where details of the co-respondent’s name and address can be inserted.
Photo by Craig Morey via Flickr under a Creative Commons licence.
August 16, 2017
Categories: Family Law