Unintended consequences of new divorce petition

Before the general election, Resolution called on all major parties to include ‘no-fault’ divorce in their respective manifestos. A YouGov poll had suggested that the majority of the public believed that people should be able to seek a divorce without having to show their spouse was at fault.

In July, lawyers were informed that the Family Procedure (Amendment No. 2) Rules 2017 would come into force on 7 August 2017. This also included a change in the look and style of the divorce petition, which now asks for the name “of the person your spouse has committed adultery with”. Will this new divorce form turn back the clock by specifically containing boxes for the name and address of the third party?

To obtain a divorce the applicant must prove that the marriage has irretrievably broken down and give one of the following reasons:

• Adultery;

• Unreasonable behaviour;

• Desertion;

• Separation for two years or more with consent; or

• Separation for at least five years.

Until 1991, where the petitioner was aware of the identity of the person with whom their spouse had committed adultery, it was necessary to name that person, who was then served with the divorce petition, became a party, and had the opportunity of putting in an answer. That created additional work (for which read legal cost) and engendered ill-feeling.

The rule change in 1991 made it clear that a third party did not need to be named. The present rules take things even further. By PD7A FPR 2010, a third party “should not be named… unless the applicant believes the other party to the marriage… is likely to object [to the divorce]”.

Resolution’s guide to good practice provides that “it is not necessary for a co-respondent to be named. If a co-respondent is named then this is likely to cause further tension and conflict between the parties and will increase costs.”

The applicant must demonstrate that adultery has taken place and that they find it intolerable to live with the respondent. Direct evidence of adultery is not needed. In practice, the evidence of adultery upon which the court relies is normally an admission in the acknowledgement of service, which contains the question, “Do you admit the adultery alleged in the petition?” Arguably, a respondent is more likely to sign an acknowledgement in the affirmative if the third party is not named.

Potentially, the wording of sections 7 and 8 of the new form could easily lead to an increase in applicants naming the third party out of malice or inadvertence.

The notes in section 8 explain that people do not generally name the person their spouse has committed adultery with and that, if the other person is named, then they would usually become a party to the court case and be sent copies of the petition.

The notes also contain the warning that the petition could be delayed if the third party does not respond and that it could cost money to resolve an issue with the third party. However, the wording of the section seems to be a clear invitation to include the name and address of the third party and no further guidance is given. Indeed, the inclusion of section 8 could have unintended consequences.

John Darnton is a partner at Bircham Dyson Bell