Rights and an English divorce

Mrs Owens and the Supreme Court

 

Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of a circuit judge and the Court of Appeal (Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74) to find that, though her marriage had unquestionably broken down, she failed to prove that her husband had behaved in a way which showed that she could not reasonably be expected to live with him.

 

The relevant law is set out at Matrimonial Causes Act 1973 s 1. There is one ground for divorce: either party to a marriage can petition for divorce (A) ‘on the ground that the marriage has broken down irretrievably’; but a court can only say there is irretrievable breakdown if one of five ‘facts’ are proved including (s 1(2)(b)): ‘that the respondent [(B)] has behaved in such a way that [A] cannot reasonably be expected to live with [(B)]’.

 

Though they considered that Mrs Owens’s (ie A’s in her case) marriage had broken down irretrievably, the Court of Appeal felt unable to say that she could not be expected to live with Mr Owens (see eg comment at ‘Owens: a dead marriage but no divorce’ [2017] New Law Journal 31 March, David Burrows; and here). The logic of the court’s conclusion, based only on the words of s 1, is difficult to follow. But what of its logic, in terms of Mrs Owens’s personal – or ‘human’ – rights (under European Convention 1950 and generally)?

 

European Convention 1950 and Mrs Owens’s rights

 

In Owens Sir James Munby P commented on Mrs Owens’s advocate’s assertion that European Convention 1950 Arts 8 and 12 supported her case. He said, of Mr Owens’s reply to this assertion, with which he agreed, that there is ‘no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings’.

 

Art 12 declares that those of ‘marriageable age have the right to marry’; and nothing is said of divorce. Art 8 deals with respect for a person’s ‘private and family life [and] his or her home’. Sir James described Mrs Owens’s advocate’s argument under Art 8 as:

 

[54] … He invites us to consider what level of ‘fault’ must be established to obtain a divorce and whether dispositive, or at least greater, weight should be given to the petitioner’s wishes and feelings. More profoundly, he invites us to consider whether the requirement to prove ‘fault’ is consistent with Articles 8 and 12

 

If this was the advocates’ argument it was, indeed, an odd line for him to take. Section 1(2)(b) does not require anyone to prove ‘fault’. It asks an open question: has a spouse behaved in such a way that the other spouse cannot live with her or him? That need not be because they are at fault. It requires proof only that B has acted in a way that A ‘cannot reasonably be expected to live with’ B. A must be able to say that her marriage is dead (as in the Owens case, and as the court found). Each party surely should then be able to move on?

 

Respect for ‘private and family life’: rights to privacy

 

If European Convention 1950 is necessary to all this, Art 8 seems to me to be relevant. I cannot see that Art 12 has any relevance. It is difficult to see how respect for a person’s ‘private life’ (‘private and family’ are disjunctive: they mean two different things. They are not both part of the same concept) is consistent with requiring either party to a dead marriage to going on living with the other spouse (as the court knew was likely to be the effect of their decision for Mrs Owens).

 

Looked at as a question of right separate from European Convention 1950, it is necessary to find a duty to which the right is corollary (or reflective). Do I have a duty to live with someone I no longer want to share a home with? If there is no marriage the answer is resoundingly: no. If I am married to that person, why is my duty any different? If it is different, does not the right not to be discriminated against (Art 14) apply (marriage is an ‘other status’ as referred to in Art 14).

 

In law spouses must make arrangements for financial support for one another (or the court can order it: Matrimonial Causes Act 1973 Pt 2). That is a statutory duty bred of a right to financial support from the weaker spouse (the same does not apply if we are not married). That right would be protected – enhanced even – if Mrs Owens’s marriage is dissolved.

 

But to find – as did the Court of Appeal – a right vested in Mr Owens to expect of Mrs Owens a form of conjugal cohabitation (and thus no right in Mrs Owens to claim financial support till her marriage is dissolved) is not in any statute. Is such a right implied by English law? That it is, is the logic of the Court of Appeal’s decision.

 

Does the requirement to live in an unwanted and loveless relationship interfere with a person’s ‘family life [and] home’? Common sense – and, it must be hoped, the law – must surely say ‘yes’? If MCA 1973 s 1(2)(b) says what the Court of Appeal says it says – and I do not think it does require them to find as they did in Owens – then Mrs Owens needs also to seek a declaration of incompatibility with her rights (in Arts 8 and 14) under Human Rights Act 1998 s 4.

On-line divorce scheme: an update…

Users to be recruited for on-line divorce system

 

At the end of January a practice direction was added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title; but it was not clear how to gain access to the new scheme. This has been explained by HMCTS.

 

After publication of PD36D inquiries were made of Ministry of Justice and of Family Procedure Rules Committee. These inquiries elicited the response that HMCTS are in the first phase of the pilot. Potential users of the new scheme will be personally invited to use the system and given access following a screening process at the pilot site. Therefore, at this stage in the pilot, access to the pilot is controlled whilst HMCTS build confidence in the system for any wider use. The pilot is being run at the East Midlands Divorce Unit in Nottingham and HMCTS are currently recruiting users in the local area to participate in the pilot. How these ‘users’ are chosen, is not stated.

 

With this in mind, I have updated my note of 31 January 2017 (https://dbfamilylaw.wordpress.com/2017/01/31/on-line-divorce-scheme/). Subject to that I have retained most of the original text. The ‘system’ represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.

 

Lawfulness of rule changes

 

This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). That said, I am concerned that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.

 

There is a statutory provision (Crime and Courts Act 2013 s 75(4) (CA 2013)) which enables the rule-makers to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (CA 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171, [2009] 1 WLR 2274). However, there is nothing to say a practice direction (which is a lesser statutory species) can alter a rule.

 

PD36D says that where it ‘applies’ an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used.

 

Clarity and the on-line scheme

 

The rules must be ‘simple and simply expressed’ (CA 2003 s 75(5)(b)). When it comes to amendment of rules I am anxious as to whether this PD is lawful (as explained above: the President using a practice direction to alter a rule, which originally is made by a statutory body). And is it ‘simple’ or ‘simply expressed’? This is a field where the scheme must be designed for use by private individuals who are proceeding without a lawyer (litigants in person). This one of a number of questions HMCTS will, no doubt, want to answer.

 

Further thoughts on the clarity of the scheme include:

 

  • It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the PD speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority). Let us hope HMCTS can be clear on terminology, and that – in the usual way – a statute takes priority over a rule.
  • The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce: same points as above apply.

 

The new PD has had some publicity amongst family lawyers. It would have been helpful for the plans for it to have been made more public, and for PD36D to have had an explanatory note – something which goes out with all statutory instruments – so all of us knew what was intended by it. It would have been of value if that note had included:

 

  • That the new pilot system applies to all divorces from [a date] for [the individuals who are to be targeted by the scheme]
  • Whether or not it is compulsory for those chosen
  • Where information about the scheme can be found at [link to site]
  • Any information about the data collected, confidentiality etc.

 

Rules amended by a rule

 

And if I am right that you cannot use a practice direction to alter a rule, then it the rules should please have been amended by another rule. It is sobering to think that someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, and the petitioner has remarried, that could be bigamy, and another petition – nullity this time – may be involved.

 

This, perhaps, puts a duty on the respondent’s adviser who is troubled by the legality of these rules. I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972).

IRREMEDIABLY BROKEN MARRIAGE, BUT NO DIVORCE

Monty Python’s silly divorce story

Imagine a town in the western US about 150 years ago. Two gun-men are poised to shoot. By extreme chance both shoot as near simultaneously as possible. Both are killed. It would be impossible for both to shoot at precisely the same moment: one must have done so fractionally before the other. The local sheriff, the then law of Colorado (say) dictates, must find out who shot first before the two bodies can be buried.

The impossibility, or absurdity (according to point of view), of the sheriff’s job is akin to that of the Court of Appeal in Lindner v Rawlins [2015] EWCA Civ 61. The judges were dealing with parallel divorces arising from the same marriage. Mr Linder had filed a petition (Matrimonial Causes Act 1973 s 1(2)(b): unreasonable behaviour). The wife filed an answer denying his allegations. And, says the law report, she filed her own unreasonable behaviour ‘cross-petition’ (para [6]: ie perhaps a separate petition, though she could have proceeded on a prayer in her answer).

Either way the English legal system cannot find that a marriage has irretrievably broken down, though both parties say it has. MCA 1973 – it will be pointed out by someone – only enables the parties to have their marriage dissolved if the court finds (1) that the parties’ marriage has irretrievably broken down (MCA 1973 s 1(1)). That is plainly the case here: possibly that is the only thing that this couple can now agree on. But – and here’s the rub – (2) irretrievable breakdown, though blindingly obvious, must be found against one party or the other (or they could agree (if they could agree on anything) to joint decrees on their respective petitions; and I think if asked nicely I could find an old precedent to deal with the point). The s 1(1) finding must be only on the basis of one or more of the five facts set out in MCA 1973 s 1(2) and found on the petitioner’s petition.

I assume neither Mr L nor Ms Rawlins (formerly Mrs Lindner) would either of them blink. So their divorce show, already running for over two years (Mr L filed his petition in January 2013), must go on.  Lawyers costs are not grinding them down (see the next section of this note). The case goes to trial – unless they agree to let one of them to file a two-year living apart petition (MCA 1973 s 1(2)(d)), as suggested by Black LJ [31]. It doesn’t take reading much between the lines to wonder if this couple could even agree the date of birth of their first born; but if Heather Mills and Sir Paul McCartney could do it (agree to a s 1(2)(d) petition), then who knows?

But in the meantime, surely someone can dig out and dust down the stuff on no fault divorce and run this case through its law reform mill.

Of interest to all family lawyers, is the court’s summary and explanation of disclosure rules in family proceedings – and specifically divorce. I will return to that another day.

Expense of judge’s time

Black LJ, with great patience and courtesy, disposed of the husband’s appeal which mostly related to his determination to prove a lesbian relationship – and more – and to undermine his wife’s credibility. He wanted, but was not permitted, to do so by seeking disclosure of a variety of documents from the police which he thought would prove his case. (Meanwhile in children proceedings a circuit judge had found as a fact that H had broken W’s leg.)

The court then went on to lament the lack of lawyers in the case and, Aikens LJ, to put this at the door of the Ministry of Justice with the loss of legal aid (see italicised passage – my italics – below). Two awkward facts blot this judicial complaint: (1) this case started before LASPOA 2012 was in force; and (2) rarely did the legal aid authorities grant legal aid for defended divorce proceedings: that was the law when I started in practice, and at a time when the legal aid scheme was not 25 years old.

This was the first two legal aid point to which the court did not draw its own attention. The third is that we do not know what are the means of the parties (perhaps H was asked – W was not in court – in the course of his submissions to the court). However, if you can’t get legal aid, because your case has no merit (eg for defended divorce) then be you ever so poor, you will not get a certificate.

First Black LJ (who makes no direct reference to legal aid) said this:

[32] The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

And then Aikens LJ:

[34] I agree with the judgment of Black LJ.   I also wish, wholeheartedly,  to endorse her observation at [32].   The procedural issue with which this appeal is concerned is technical and unusual.   The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court.   The wife was neither present nor represented.   Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer.  To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file.  All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time.   The result is that there is, in fact, no economy at all.   Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.

Costs of procedure

I don’t imagine MCA 1973 s 1 will be changed very quickly to resolve the absurdity of both people saying their marriage is dead, but neither being able to kill it till the full panoply of a two defended divorces have been gone through.

Two other short-term remedies suggest themselves:

(1)        Makes rules simpler and clearer

It is relatively much simpler to amend procedural rules. Courts can make orders of their own initiative (FPR 2010 r 4.4); statements of claim can be struck out (FPR 2010 r 4.3(1)). On the court’s own findings the wife, by the sound of it, would be entitled to a decree. The husband could fight on, but when the wife obtained a decree absolute on her decree, the marriage would be dead. He would be left like the knight in Monty Python’s Holy Grail. He’d lost both legs and both arms, yet was still determined to fight on… Mr Lindner would have no marriage to dissolve.

Alongside that, much of the silly procedure – still modelled on pre-1965 rules – could be revised and the whole of FPR 2010 Part 7 revitalised and brought into the 21st century (which FPR 2010 failed to do). Oh, and every effort could be made to write it in ordinary English so that people like Mr Lindner and Ms Rawlins can understand it, with only a modest dictionary to hand (they can always look up words like nisi and decree, I’d say).

(2)        Help for the judges

And for the judges: one can understand entirely their irritation at having to trawl through untidy and ill-managed files, with bundles which shock Sir James Munby P, even on a relaxed day. First, some of this could be done by better-qualified and more court staff. In cases where law needs to be looked up, why not an advocate to the court? These things would have to be case-managed; but I bet a junior advocate (and not always members of the bar: solicitors, for instance, know a lot more about divorce practice rules than most barristers) would be much less expensive to pay for the time, however brisk and expert, of Black LJ. I bet the good LJ would be much happier if that could be arranged.

Such an appointment could not, in this case, have headed off the over-enthusiastic husband; but a few phone calls to him before the case came on might have saved LJ preparation time enormously; have narrowed the issues; and, even, pointed out to the two parties that a quieter life would be gained by one filing a s 1(2)(d) petition.

Better still, with help of this sort the real fear which Aikens LJ has: ‘… that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it…’ can be hoped to be avoided. Sooner or later we are going to have developing a trickle of applications to set aside appeals decisions because the court overlooked crucial law (CPR 1998 r 52.17); and thus will more Court of Appeal time be wasted.

CENTRES FOR DIVORCE

HMCTS tells Resolution its plans for issue of divorce process

Resolution have recently published, under the heading ‘Centres for divorce – important information’ (https://mail.google.com/mail/u/0/#inbox/14b5e54224361566) a document which represents what is to happen concerning issue of divorce petitions in the new family court. There is no balancing information from the Ministry of Justice (so far as I know; but see reference to request for information from FPRC below). The document raises, perhaps, as many questions as it answers. It suggests that those involved had little opportunity to negotiate with HMCTS (contact was only made with HMCTS as a reactive measure).

Resolution reports – without comment – the ‘rationale’ of HMCTS for ‘centralisation’: we have a family court so let’s have as many documents as possible issued in one place. Economically that may well make sense (as does that ‘legal advisers’ – ie magistrates’ legal advisers – deal with the decree nisi certificates: FPR 2010 r 7.22); but is that a good step for a family court which, by definition, should surely keep its roots in a relatively small locality. And, in a spirit of joined up thinking, a note – from HMCTS or Resolution, or both – as to how this plan links in with any thoughts on divorce becoming ‘de-linked’ from financial proceedings would have been valuable. The recommendation appears, for example, in the Final Report of the Financial Remedies Working Group (http://www.judiciary.gov.uk/publications/financial-remedies-working-group-report/) para 26, which would have been available to HMCTS by before Christmas (and to Resolution if they have a representative on the Working Group).

Divorce petition issue centres

The ‘centres’ scheme proposed by HMCTS and explained by Resolution are as follows: that

Decisions on number, location and timetable have been made within HMCTS at regional level, on the basis of local estate and resource considerations.  Some divorce centres are already fully or partly live.  The transfer of work is being phased (sic) to the centres, and the current plan is that each of the divorce centres will be fully operational as follows:

Region Centralised to Fully live with effect from
North East Durham, Bradford (and Harrogate)*, Doncaster November 2014
Wales Neath & Port Talbot, Newport (Gwent), Wrexham January 2015
North West Liverpool February 2015
Midlands Nottingham, Stoke-on-Trent February 2015
South West Southampton April 2015
London and South East** Bury St Edmunds October 2015

* work from Harrogate is planned to transfer to Bradford in due course

** the plans for London and the South East remain in development

‘Urgent applications’ it is said, can still be issued at ‘local hearings centres’; and, we are told by HMCTS and Resolution, that:

The Family Procedure Rules Committee [(‘FPRC’)] will be considering changes to the D8 petition form and Form A financial remedy form so that your clients can indicate where they would prefer hearings to take place, and why, if one is required.   If there is any dispute over the venue for hearings, this will be dealt with in the usual way by a DJ at the divorce centre.

Request for information from FPRC

None of what is in the HMCTS information is yet in Family Procedure Rules 2010. Rules will require to be drawn up to reflect these changes, I trust. My questions of the FPRC, which I have raised with their officials are:

  1.  How is ‘urgent’ to be defined so that a petitioner will know whether or not his/her petition can be issued at the counter of an individual ‘local hearing venue’ (presumably a court office)?
  2. By what criteria will transfer to a local court venue be directed
  3. Do hearings have to be at a court office or building; or can they be at any suitable building most convenient to one or (if possible) both parties?
  4. Sharing work with other centres: what does this mean and by what criteria will when to share be decided?
  5. What arrangements are to be made to link up all files in relation to each family breakdown in one court office (or ‘centre’)?
  6. Where are decree nisi hearings to be listed and ‘heard’?

A FAMILY LAW REFORM MANIFESTO

A hundred days till the election

With a hundred days to go to an election, my top ten list for law reform (mostly family) would be as follows:

1 Clarification of law – all primary law, procedural rules and other delegated legislation (regulations, guidance and the like) must be written in language which is understandable by the averagely intelligent lay-person (with a dictionary). The procedures it describes must be logical and follow common law rules. Children law procedure in one part of Family Procedure Rules 2010 (Part 12) with 16 practice directions is an insult to all of us; and an unjustified assault on the many lay people who wrestle with litigation over their children. Legal aid and its regulations add another dire dimension of opacity of the so-called rule of English law.

2 Mediation first – the mediation process should be clearly separated from the litigation process. In the public mind the point of entry into the family breakdown system should be mediation first. It would follow from that, that solicitors’ organisations (eg Law Society, Resolution) should look very carefully at the extent to which they can fairly, and without conflict, represent both mediators and litigators.

3 Cohabitation law – must be brought into line (as it has been for most children proceedings: welfare and money) with other law on family breakdown (eg in relations to parties’ finances and rights to their home).

4 Legal aid – in the modern austerity climate a wholesale return to pre-1999 family law legal aid is impossible; but circumstances where the tax-payer can be banker (via the statutory charge must be investigated); domestic and other abuse must guarantee legal aid (graded domestic violence: how sick is that?); other forms of funding – without too much complexity (relative ‘clarity’ per 2 above) must be found.

5 Case management – effective case management is the obvious ‘something must be done’ of Munby J’s plea; but now he is in a position to do ‘something’ he ignores the point. The judiciary has the remedy in its own hands; but it must take hold of it:

• Since case management has been around since at least 1999, it seems judges in family proceedings need training
• Issues must be identified at the outset, and the evidence relevant to these issues kept under control
• Issues which need a preliminary decision – sometimes so obvious – must be identified and disposed of

6 Parallel case management and mediation – case management must go hand-in-hand with mediation; on a parallel (ie parallel lines never meet, save in infinity) basis. There will be symbiosis between mediation and case managed litigation: sometime the mediator will control this; sometimes the court. The point is that the court process – and therefore the marriage breakdown lawyers – does not control agreement or disposal on breakdown. In-court family dispute resolution, if conducted by the court, must be done by trained judges; not on the hit-and-miss basis at present.

7 No fault divorce – divorce is an administrative process, not part of the court/litigation process; and this should be recognised, given effect to and – whilst on the subject – it should be made non-fault.

8 Protected individuals – or ‘vulnerable witnesses’, must be taken very seriously. It cannot be just one rule change, as now suggested by the witness working group. My response to the 31 July Interim Report of the working group is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/; and I urge my recommendations there as part of this manifesto.

9 Children law – the child sex abuse inquiry which is proceedings so falteringly can produce ideas (see eg https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ ) for child protection law reform. It is urged to do so such as looking a child confidentiality, whether Working Together is working and so on.

10 ‘Transparency’ – The so-called ‘transparency’ debate is wrongly named (since it implies that a closed court is the starting point). Its real meaning is the extent to which family courts can lawfully made private – such as where children’s private lives are in issue. The present debate must be scrapped, the rules made lawful and privacy in family proceedings looked at in principled way. Any case starts from open court, and the law defines where privacy should start (and privacy will rule, most certainly, in many family proceedings).

McCARTNEY’S WAY OUT

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 [2012] 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)).