Michael Allum and David Hodson with Stuart Clark
On the evening of 17 July 2017 the profession was notified of the Family Procedure (Amendment No. 2) Rules 2017 which will come into force on 7 August 2017, less than three weeks ahead, with some transitional provisions until 4 September 2017. Accompanying it was a dramatic change in the look and style of the divorce petition, to take effect this summer. Undoubtedly it is a precursor to online divorce.
At the moment, r.17.1(1) FPR provides that applications and answers for matrimonial or civil partnership orders (i.e. divorce/dissolution petitions and answers to those petitions) do not need to be verified by a statement of truth, unlike some documents e.g. Form E. From 7 August 2017 r.17.1(1) is omitted. The effect is that divorce and civil partnership petitions must be accompanied by a statement of truth, albeit transitional rules allow until 4 September 2017. This required amendment to the form of the divorce petition, D8.
More fundamentally, at the same time we understand the Family Procedure Rules Committee took the opportunity to provide other amendments to make the petition document more comprehensible to lay parties. This reference to “other amendments” belies quite dramatic changes in its look, style and how it will be completed. It can be found here as a PDF but an electronic version will not appear on any government court service website until 7 August 2017 because of version control, and fundamentally it cannot be sent to any court office before that date. Any attempt to file this new form before 7 August 2017 will result in the petition being returned. There is a similar form also being made available for 7 August 2017 for Answers and which follows a similar format.
The new form can only be used from 7 August 2017 and must be used from 4 September 2017. Courts have been told not to accept the old forms i.e. the present forms, after 4 September 2017. It has clearly been drafted with significant reference to the online divorce project being run successfully by the Ministry of Justice and being rolled out during the autumn, winter and forthcoming spring 2018. Accordingly the petition looks far more like a question-and-answer format and with only occasional need for more than a few words by way of an answer. It is accompanied by significant notes of guidance in plain English; now sensibly within the document. There is no longer any separate guidance notes being printed or published.
Some lawyers may cavil over parts of the guidance including technical distinctions. This is inevitably the nature of summarisation of complex law and procedure and the use of plain English. It will mean a big change in the preparation of the divorce petition. It can be undertaken by many clients themselves with only limited involvement with their solicitors. Inevitably it will greatly assist those acting in person and will hopefully reduce the high level of returned petitions about which the Court Service have reported on numerous occasions following the centralisation of Divorce Centres.
We have discussed the new petition within our office and are very impressed by the very good work undertaken in the drafting and the formulation of the questions and answers. These are just a few initial thoughts:
- Although the new divorce petition front page retains fields for the date received by the court, date issued and time issued, it is a pity it does not also include the time received by the court, given that the European Court of Justice has directed that it is the time that a petition is lodged which gives priority under the Brussels II Regulations rather than the time of issuing;
- In places there is reference to the petitioner and in other places to the applicant. This has potential for confusion;
- There is a very commendable reference to the requirements for separate arrangements to dissolve religious marriages;
- We think the reference to the name presently used by the petitioner as distinct from the name on the marriage certificate might cause confusion;
- We were very pleased at the very explicit reference to the opportunity for confidentiality and for the contact details not to be shared with the other spouse. This protection already exists but is not well advertised;
- The petition asks if the marriage took place outside of the UK. However there are no other questions along these lines. It is not needed for any jurisdictional grounds. It seems unnecessary;
- Perhaps as international lawyers we are especially sensitive to the issue of jurisdiction, but we were delighted that the form of petition has reverted to the previous list of all grounds for jurisdiction which could be available rather than presuming it would be joint habitual residence. All indents of Article 3(1) of the Brussels II Regulation are included;
- However, in referring to the grounds when the petitioner is habitually resident and has been resident for either six or twelve months, the new petition uses the word “and” rather than “insofar as”. It is the latter which appears in the EU legislation. The new petition therefore follows the definition in the leading High Court decision of Marinos even though there is a contradictory High Court decision (e.g. Munro) and it has yet to have Court of Appeal adjudication. It is also known that a number of EU countries have a different understanding of these indents under Article 3(1). These statements of potential jurisdiction grounds are therefore made without reference to settled law;
- There is reference to irretrievable breakdown then with a summary description of: the marriage can't be saved. Many would give general support to this description but it is not the precise law;
- The summary notes explain some circumstances in which a couple may be living apart whilst in the same residence and this is generally helpful;
- In respect of the grounds of two or five year separation, the new petition asks when the petitioner reached the conclusion that the marriage was at an end. This is the rather historic case of Santos whereby there must be the mental intent of separation as well as the physical separation. It is frequently overlooked. We anticipate that a number of petitions will fall foul of petitioners giving a quite recent date for when they concluded the marriage was at an end and therefore not able to show the two or five year separation as applicable;
- There is a commendably small box for the statement of unreasonable behaviour. Of course law publishers will produce expandable boxes but it is to be hoped this will discourage unnecessarily extensive allegations;
- The petition asks if there have been any existing or previous court proceedings but unlike the present petition does not specifically ask if there are or have been any proceedings abroad. In our opinion it would have been wise to have included this, as the present petition does;
- Many of us have been arguing for a long time that we should drop the “prayer” for financial claims. Commendably the new petition has done so, although there is a minor reference to prayers in light font so that legal traditions and requirements are satisfied. More fundamentally, the specific list of possible ss22-24 MCA claims has been removed as tick box claims, which had always caused contentiousness with the recipient (e.g. when there had already been agreement on financial matters). We think this has been particularly well done in the new petition;
- The summary note for the claim for costs of the petition says that the court will not normally order costs where it is a five year separation tradition. In our experience, this also applies in two year consent petitions unless there is any other agreement;
- We observed that Part 7 of the present petition, which includes the names and dates of birth of the children of the family, has been removed altogether. Certainly the court does not now need to satisfy itself about the arrangements for the children before a final decree can be made. But there will be debate about whether it is right and appropriate that there should be a divorce petition without any reference to children, whether of the family or of either party. At the very least, it will make it hard to compile statistical data;
- Part 8 of the present petition regarding help that may be needed for special assistance or facilities has been removed and maybe there is a good reason for doing so but a number of parties to seek special assistance and needs somewhere to be flagged up.
Overall, we were very impressed. Like all changes, it will take time to settle and become familiar. But especially when we have online divorces, the profession will see the benefits of this new style petition. It may be that there could be a few changes but these are minor in the overall scheme. All those involved in the drafting process, including the very tricky element of giving summary guidance in lay language, are to be highly commended.
In addition to the above-mentioned changes to divorce/dissolution petitions and answers, the Family Procedure Rules have also been amended in relation to FDR appointments in financial remedy proceedings and procedure under Part III of the MFPA 1984 as follows:
- Requirement to have a FDR in Financial Remedy Proceedings. The current r.9.15(4) provides that if the court at First Appointment decides that a referral to a FDR appointment is appropriate it must direct that the case be referred to a FDR appointment. Whilst in practice a judge at First Appointment will almost always direct a FDR appointment, r.9.15(4) is amended to provide that the court at First Appointment must direct that the case is referred to a FDR appointment unless (i) the First Appointment has been used as an effective FDR appointment or (ii) there are exceptional circumstances which make a referral to a FDR appointment inappropriate. In practice the exceptional circumstances will be set out in the order. It’s a matter for discussion as to what might be exceptional. Perhaps one party having to travel a long distance, either internationally or at disproportionate cost. Perhaps when there already has been a roundtable meeting with lawyers present, although some judges will not consider this exceptional.
- Part III MFPA 1984 Applications. At the moment r.8.25 provides that the court may grant an application under Part III which has been made without notice to the respondent if it appears that there are good reasons for not giving notice. If the application has been made without notice the applicant is also required to state why notice has not been given. From 7 August 2017 r.8.25 instead provides that the application must be made without notice to the respondent and (unless the court considers it appropriate to be determined on notice) also determined without notice to the respondent. This will bring the FPR in line with what the courts have been doing in practice for some time and accords with the recommendations made by the Financial Remedies Working Group in 2014.
- Part III Allocation. At present r.8.28 provides that if a leave application under Part III is granted a High Court judge may direct that the rest of the application may be heard by a district judge of the Principal Registry. From next month that Rule shall be removed and r.8.23 will be amended to include a signpost to The Family Court (Composition and Distribution of Business) Rules 2014 which contains guidance as to which level of judge applications under Part III should be allocated. The existing reference in r.9.5(3) to the level of judge able to hear Part III proceedings will also be removed and the above-mentioned 2014 Rules will govern allocation.
This article was first published on Jordans Family Law website on 19/07/2017
Michael Allum and David Hodson with Stuart Clark
The International Family Law Group LLP
© July 2017