Supplemental petitions are back
Readers may recall that Sir Paul McCartney and Heather Mill-McCartney were to be embroiled in a defended divorce on cross-allegations of unreasonable behaviour. They were rescued from a public defended divorce by the ruse of agreeing to proceed with their ancillary relief claim, to be followed – when, later, the time came – by the petitioner filing a supplemental petition based on Matrimonial Causes Act 1973 s 1(2)(b) (living apart for two years with consent). Their two years had not elapsed when their well-publicised financial proceedings were dealt with.
Probably by oversight, and careless of the boon of this procedure to Sir Paul and Mills-McCartney, the Family Procedure Rules Committee failed to include reference to supplemental petitions (they remain petitions in relation to divorce and judicial separation: MCA 1973 s 1(1)) in Family Procedure Rules 2010. And thus one of the sillier procedural passages in the life of Family Procedure Rules 2010 followed a couple of years later. In Kim v Morris  EWHC Fam 1103 Parker J held that this omission of the right to file a supplemental petition was ‘a deliberate omission, and effects a substantial and important change in procedure’. She did not state her source for finding the omission to be ‘deliberate’; and she did not explain how she overcame the point that withdrawal of a right must be express, not inferred from silence.
Kim v Morris
In Kim v Morris a couple had separated in 2006. The wife obtained a decree nisi on H’s adultery (undefended; MCA 1973 s 1(2)(a)). H filed form A (application for a financial order); but the parties then resumed cohabitation in late 2006 and lived together till towards the end of 2010. W wanted to pursue her 2006 divorce. She alleged that throughout their reconciliation H had continued to commit (unadmitted) adultery. H wanted to proceed with a divorce petition in Singapore where he was now habitually resident.
If the court could rescind her decree nisi, W could file a petition supplemental to her 2006 petition. If she could not then she must start again; but H was ahead of her with his petition in Singapore. Her petition must be dismissed. Her marriage dissolution and financial proceedings would go ahead in Singapore.
I do not know whether anyone has been caught out like Mrs Morris as a result of this decision, or because of the silence of the new rules. But now, to any beleaguered petitioner who needs to prove supplemental facts, help is at hand. Family Procedure (Amendment No 4) Rules 2014 add a new FPR 2010 r 7.13 to the 2010 rules. The new rule includes:
(2) Unless [an application for a decree nisi has been made]…—
(a)a party making an application for a matrimonial or civil partnership order may amend the application at any time before an answer to it has been filed;
(b)a party making an application for a matrimonial or civil partnership order may make a supplemental application at any time before an answer has been filed;
(c)a party who has filed an answer may amend the answer.
Supplemental petition: the difference
But why does it matter: amendment, supplemental? What’s the difference? The difference is that a supplemental petition/application dates from the date of the additional petition/application, whereas the amended petition dates from the date of the original pleading.
Thus if a couple agree – say in mediation – that they will proceed on a petition under 1(2)(d) instead of on unreasonable behaviour (eg filed soon after separation, and as did Heather Mills-McCartney and Sir Paul) they would file – in the same cause – a supplemental petition. They cannot amend since the facts they are now pleading did not exist at the time of the original petition. The court fee and associated costs for this exercise would be appreciably less than for seeking leave to file, and filing, a fresh s 1(2)(d) petition.
The same would apply where a petition was proceeding under s 1(2)(b), which was the subject of an answer (defended). The respondent agree to accept an adultery petition, but will admit adultery only at a time after the s 1(2)(b) petition was filed. This and other examples will crop up. The supplemental petition may – from time to time – be a boon to the mediator. All other issues are resolved; but things said in the original petition are wanted to be unsaid.
And if agreement is reached, but a decree nisi is needed to make it enforceable: the McCartney consent order procedure has been revived by recent developments in the common law (see under MCA 1973 s 7 in Family Court Practice 2015 (yet to be published)).