Alex Woolley writes for The Review. The article titled ‘The dangers of oversimplification’ discusses the HMCTS’s guidance notes to the updated divorce petition.
The new divorce petition was launched on 7 August 2017 to much fanfare (at least in the family law world) and became compulsory from 4 September 2017. It has now been in use for nearly 18 months but, despite an error being flagged to HMCTS by this author as long ago as August 2017, amendments have still not been made. At the time of writing, the version of the petition provided on Quantum, on Laserforms and, most concerningly, on the HMCTS website continues to contain “guidance” that is simply incorrect.
The redesigned petition is an alternative to the online petition, which has now been rolled out to litigants in person and is clearly drafted with the lay petitioner in mind. It includes helpful guidance running down the side of the form rather than in a separate document as was previously the case. Whilst this attempt at clarity is to be applauded, it leads to the problem that, in some areas of the form, HMCTS have oversimplified complex concepts and in at least one case have misstated the law.
Section 6.1 of the new petition sets out the fact(s) which bare to be relied on as “the reason for your divorce or dissolution”. The familiar words from the statute are restated: “Behaviour: The Respondent has behaved in such a way that the Petitioner/Applicant cannot reasonably be expected to live with the Respondent.” This is accompanied by guidance directly to the right of this tick box which states as follows: “Behaviour cannot be used if you lived together as a couple for a period, or periods, totalling more than 6 months after the date of last incident [sic] you want to rely on as evidence.” (emphasis added). The statute contains no such bar and the guidance, as now stated in the petition, contradicts the relevant subsection of the Matrimonial Causes Act 1973.
It must be remembered that the basis of the behaviour fact is not, as is often incorrectly stated and as we were reminded by the Supreme Court in Owens v Owens, “unreasonable
behaviour”. It is behaviour that means that “the Petitioner cannot reasonably be expected to live with the Respondent”. Section 2(3) is rather opaquely drafted but the effect is that
continued cohabitation of under six months since the last event relied on as behaviour is disregarded in deciding upon the reasonableness of that expectation, whilst cohabitation
of more than six months is, although not irrelevant to the reasonableness test, not a bar to the fact being relied on. This is in stark contrast to the six-month bar in s2(1), where the
fact of adultery is being relied on.
This misstatement of the law in the official guidance on the face of the petition is unfortunate and, in the opinion of the author, may, in fact, be dangerous. As long ago as 1973 Scarman LJ in Bradley v Bradley  1 WLR 1291 (CA) realised that in some cases the petitioner may have had no choice but to remain in the home, even continuing to live “as a couple”:
“There are many, many reasons why a woman will go on living with a beast of a husband. Sometimes she may live with him because she fears the consequences of leaving. Sometimes it may be physical duress; but very often a woman will willingly make the sacrifice of living with a beast of a husband because she believes it to be in the true interest of her children. Is such a woman to be denied the opportunity… of calling evidence to show that, although she is living with him, yet the family situation is such and his behaviour is such that she cannot reasonably be expected to do so? It seems to me… that there is no logical difficulty in the way of the wife; and the Act plainly envisages that
she should have the opportunity of placing her case before the court.”
The judgment of Scarman LJ was obviously given at a time when many more divorce petitions were defended but it is not difficult to envisage a situation where an abused
spouse takes over six months from the last event of abuse to build up the courage to issue divorce proceedings. Such a petitioner, unable to afford or unwilling to seek legal advice,
might have real concerns when reading the guidance on the form over whether they can in fact petition for a divorce if they are unable at that time to prove one of the other facts. Practitioners, of course, understand that the law is not actually as stated on the new petition but, in a climate where an ever-increasing amount of petitioners are unrepresented, it may act as a real deterrent to petitions being raised.
Helpfully, the guidance contained in the new online divorce petition states the law correctly. Although the uptake of the online petition has been significant, it seems likely that for some time to come lay petitioners will continue to use the paper-based petition. It has now been some time since the “new” petition was released, and teething problems were inevitable, but this guidance must be amended as soon as possible to ensure that it states the law correctly as it is set out in the statute.