Primary law and pleading: the point of a family law needle
How varied is the life of the family law commentator: yesterday it was the very important subject of child sexual exploitation and sexual risk orders (https://dbfamilylaw.wordpress.com/2015/08/12/sexual-risk-orders-and-the-inherent-jurisiction-in-children-proceedings/) – truly the sharp and most pressing end of a family lawyer’s practice. Today family law finds me grubbing in the minutiae of divorce pleadings and matrimonial causes cross-petitions, with a nod to constitutional law reform (does the dictat of a court counter clerk (accompanied by a Ministry of Justice form) or the will of Parliament take priority?).
Only family lawyers concerned with procedural niceties could conjure up the controversy considered in this note. A controversy, however there is, in a dense and mostly ignored part of the family law procedural jungle: does a respondent to a divorce petition still have the right to file an answer with cross-prayer to a divorce petition; or is the former right to cross-petition hitherto enjoyed by a party to divorce proceedings (or other ‘matrimonial cause’) somehow revoked by the silence of Family Procedure Rules 2010 on this subject?
Traditionalists, who believe in the primacy of law (ie statute law and the common law (‘primary law’)), say the long-standing right to file an answer and cross-prayer to a divorce petition subsists. The modernists – not perhaps encumbered by the disciplines of adherence to primary law – say no: if the rules are silent and Ministry of Justice counter-staff and a court form says so (Form D8B: relevant text below) then, they say, the cross petition disappears. Thus does a debate emerge, on a subject that is of only obscure interest (but which can cost the unsuspecting member of the public who is taken in an unnecessary £655: more if fee changes proposals come in).
The debate may be the more absurd still. A brief reading of the relevant rule in the former family proceedings rules (ie Family Proceedings Rules 1991 r 2.12), discloses no mention of cross petitions or cross prayers either; yet plainly they had a full and lively existence under the old rules and for over a century before that.
A number of immediate practical questions present themselves:
- First the obvious point: that if FPRC and the modernists are correct, the MoJ receives an extra £410 if a separate file must be opened; and when a decree is granted on the second petition (P2) the first £410 + £245 (assuming the respondent in P2 is advised to file an answer – ie £655) is presumably written off for almost no financial benefit to either or both parties.
- If no answer is filed (at an expense of £245) how does a respondent in P1 ensure his/her marriage is not dissolved on that file?
- How does the court dispose of the remaining dangling P1, which MCA 1973 s 20 (see below) seems to enable the court to wind up on the cross-payer (as we have always done) altogether in one set of petition proceedings?
Law reform and a court form
The court form in question, Form D8B says:
- This form should be completed if you wish to defend the divorce/dissolution /(judicial) separation or nullity petition issued by your spouse/civil partner. This could be because you do not agree that your marriage/ civil partnership has irretrievably broken down, or you wish to defend allegations made against you by your spouse/civil partner.
- If you wish to apply for a divorce/dissolution/(judicial) separation or an annulment against your spouse or civil partner you should complete your own petition. This will be issued within the existing case, and the judge will determine the outcome.
Because the cross-petition deniers argue from the silence in the rules, citation of the rules (FPR 2010 Part 7 especially r 7.12 (what a respondent should do on being served with a petition; and see r 7.14 also)) is not possible here. ‘Answer’ and its contents are not defined in FPR 2010. If – as might be logical – one were to fall back on the old procedure, pre-FPR 2010 practice and the silence of FPR 1991, the case for cross-petitions would be made.
In King’s Lynn and West Norfolk Council v Bunning  EWHC 3390 (QB) Blake LJ (at §) recalled – in case there were any doubt on the subject – that procedure cannot be regulated by the terms of a form.
Primary law on cross-petitions
The discussion of this obscure subject starts from MCA 1973 s 20 and the common law. If any court process is started by a complainant (plaintiff, petitioner, applicant etc), the defendant/respondent has the right to file a defence or answer, and that that response can include a counter-claim (called a demurrer in medieval times). CPR 1998 Part 15 reflects this common law position, as it must, in the absence of statutory authority expressly overriding it (see eg exp Simms below).
Scott & Anor v Scott  UKHL 2,  AC 417 reminds readers that the origin of the modern divorce process was the civil courts process, not the ecclesiastical procedures which it replaced. By the new Divorce and Matrimonial Causes Act of 1857 divorce procedure overrode the procedure in the ecclesiastical courts. That was the main basis on which the application of the open justice principle to divorce proceedings was explained in Scott.
MCA 1973 s 20 provides that whatever a petitioner can be granted in terms of relief (ie court order) so too can a respondent as if he or she ‘had presented a petition seeking that relief’. The relief can be provided in ‘any proceedings’, which perhaps implies that it is in the proceedings presented by the petitioner. Section 20 is as follows:
20 Relief for respondent in divorce proceedings
If in any proceedings for divorce the respondent alleges and proves any such fact as is mentioned in subsection (2) of section 1 above (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of that subsection) the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief.
Recently the Court of Appeal has suggested that they see no problem with the concept of a cross-petition (though the cross-petition issue discussed here was not argued in front of them). In Lindner v Rawlins  EWCA Civ 61 – perhaps the only divorce procedure case to reach the Court of Appeal since the introduction of FPR 2010 – Black LJ said:
 In May 2013, the wife filed an answer in which she denied all the allegations made by the husband. She also filed a cross-petition in which she made diverse complaints against the husband, including that he had been controlling and violent….
Rule maker’s powers
It is understood that the rule-makers (Family Procedure Rules Committee: FPRC) believe that their silence on this subject, backed by the pre-amble to Form D8B (above), deletes the cross-petition from the divorce procedural lexicon (as, perhaps, it does); but also that it deletes it from English law. If this is the view of FPRC, their position is – to say the least – controversial; and it is not in any obvious way backed by their statutory powers; and it may not be intra vires the statutory powers of FPRC. These derive from Courts Act 2003 ss 75 and 76. Neither of these sections give any power to FPRC to change the common law or statute. Such would be very rare, if not impossible in modern legislation terms (see eg R v Secretary of State for the Home Department, exp Simms  UKHL 33,  2 AC 115).
A procedural rule cannot alter the substantive law or the jurisdiction of the court. It can only direct how the existing jurisdiction of the courts is to operate (see italicised passage below). For example, in Jaffray v The Society of Lloyds  EWCA Civ 586, Buxton LJ was commenting on the extent to which a new rule – CPR 1998 r 52.17 (setting aside appellate court orders) – should be interpreted:
 [Counsel for the appellant] argued that since the application was made under CPR 52.17 the court should start from, and apply, the plain wording of that rule, [which] prevailed over any previous jurisprudence that might be argued to limit the jurisdiction to any particular category of cases, for instance where the earlier decision had been obtained by fraud. Accordingly, the court should not take time with analysis of Taylor v Lawrence itself [the case on which r 52.17], or of the cases underlying it, but should ask itself whether this appeal should be reopened in order to avoid real injustice in a broadly discretionary, essentially palm-tree, frame of mind.
 That approach is quite misconceived. The CPR, being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628…. (emphasis added).
If a rule or other subsidiary legislation (eg FPR 2010) conflicts with primary law (common law or statute) the court must follow the primary law. MCA 1973 so 20 seems relatively clear. The common law (supported by CPR 1998 Part 15) permits a respondent to any court process to defend it and, in the same proceedings, to cross-apply (counter-claim). The 1857 reformers anticipated that this position would apply for the new divorce and matrimonial causes procedures. Whatever the silence of the 2010 rules suggest, this surely remains the law?
And those who argue the law can be changed by the pre-amble to a form must surely think again. The form does not represent the law, and is not within the powers of the person or FPRC by which it was drafted.
The danger of printed forms: http://www.familylawweek.co.uk/site.aspx?i=ed146270 was pointed up by Taukacs v Taukaca  EWHC 2365 (Fam), Holman J (3 August 2015) where a wrongly drafted form caused a woman to spend a week-end needlessly in prison, and perhaps to lose her summer holiday. Forms cannot routinely be assumed to represent the law.
 In the British South Africa case Lord Herschell said: ‘It has been more than once held that the rules under the Judicature Acts are rules of procedure only, and were not intended to affect, and did not affect, the rights of parties.’