Creatures of habit

They say that humans are creatures of habit. Judges are no exception, which goes some way towards explaining why it is taking me (and others) some time to get used to the new forms introduced by the Family Procedure Rules 2010, and to some parts of the rules themselves. One change in approach that can add to the strangeness is that the required contents for divorce petitions (yes, they are still called petitions '“ it seems a lack of funds prevented the terminology in the new rules fully embracing the 21st century) are not now set out in the rules, but are to be found in the prescribed forms and accompanying notes.

The 'new' divorce forms have been in use for about nine months now. They were designed to be user-friendly for lawyers and litigants in person alike. In general they are and the accompanying guidance notes are clear enough. But still mistakes are made. When we spot these the papers have to be sent back for correction. This causes more work for staff and for judges and delay for the parties. It would be tedious to set out a litany of common mistakes but let me mention a few.

I doubt whether these particular statistics are kept but I would be prepared to bet that the winner in the mistakes-in-divorce-petitions league would be the question about jurisdiction. Both solicitors and litigants in person frequently fall at this hurdle. It is not enough to assert boldly that the court has jurisdiction under article 3(1) of Council Regulation (EC) Number 2201/2003 of 27 November 2003 (by ticking one box): you have to tick another box as well to state the grounds under the article which apply. The explanatory notes spend some two pages telling you this, but maybe the layout of the form is not as clear as it might be.

If you want to claim the costs of the divorce from the respondent you have to tick the boxes in both the petition and in the SPA (now 'summary' as opposed to 'special' procedure affidavit). Too many claims for costs are rejected because the petitioner (who presumably intended to claim costs all along) has ticked the box in the affidavit but not in the petition. Equally too many letters come in complaining that no order for costs has been made when the box in the petition has been ticked but not the box in the affidavit, which is somewhat deceptively hidden in a continuous line of text.

On the plus side the opening section dealing with parties and names is a great improvement. The old uncertainties about whether you put in your name as it was immediately before the marriage, your name as it became on marriage or your name now (if different) seem largely to have gone.

Also, undefended petitions for nullity are now covered by the summary procedure, so that entitlement to a decree can be certified by a district judge and decrees pronounced in the same way as for divorce petitions.

Little gems

The joy of certifying (or declining to certify) piles of applications for decree nisi (another linguistic relic from the past) is still enhanced by the occasional little gem; here are some recent ones from the judicial online chat shop. Response to the question 'Do you consent to a decree?': hell yes! And to the question 'Do you admit the adultery alleged?': yes, and some. And this 'prayer' for divorce in a petition: 'Dear Lord, I pray that I am now dissolving this marriage. The vows and promises I made when we got married were not fulfilled. I ask for your permission to be set free and start a new life. Amen.'

Next, a word about consent orders for financial remedies. Apart from pension annexes etc, no forms are prescribed but some wording now is. If, as many practitioners still insist on doing, you want a party to undertake to do something (as opposed to merely agreeing) then as well as inserting the usual recital you must also add into the order a statement using mandatory wording which differs depending on whether the 'something' is paying money or doing some other thing, and if both forms of undertaking are to be given then both sets of mandatory wording have to be included. The wording is in PD 33A, and the statement must be signed by the party giving the undertaking. I have long doubted the usefulness of undertakings in consent orders and had hoped that this practice direction would lead to practitioners seeing the light and simply reciting agreements; another hope dashed!

There is a debate among district judges about whether we should draw final orders for financial relief where both parties are litigants in person. I believe that we should do so when there has been a contested hearing, but that we should only do so where parties have agreed terms themselves if there seems no other way of getting an order drawn. Happily the consensus seems to be that judicial immunity from suit would apply if the order turned out to be not what one or other party actually intended. If I have to draw an order for litigants in person after a contested hearing or (with extreme reluctance) when they have reached agreement but are clearly incapable of drawing the required order, I omit any undertakings and save myself the chore of setting out the required verbiage.

Now back to the next D80, hoping to see another gem to brighten the day!

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