On 7 August 2017 a number of changes to divorce law came into force. These changes were accompanied by the introduction of a new divorce form, which has, since 4 September 2017, been the only divorce form accepted by the Courts. The new divorce form appears to have been designed to assist litigants in person and undoubtedly it does considerably simplify the language used, making it more easily understood by those less familiar with legalese. In the early weeks prior to and following the introduction of the form, various concerns were raised both by practitioners and within the press about the possible pitfalls of the new form. Now, several months down the line, it is interesting to consider whether these concerns have been realised, and look at what impact, if any, the new form has had.
Perhaps the most publicised concern with the new forms was the suggestion that petitioners will be encouraged to name and shame third parties where the divorce is commenced on the grounds of the respondents adultery. Whilst the law is unchanged, the new forms are certainly more suggestive that a third party should be named. When petitioning for adultery, there has for some time, been the option to name the third party involved. Most practitioners will tell you, that parties often come in with the intention and desire to do so, but with the benefit of sensible legal advice about the difficulties and additional aggravation this can cause, few go on to do so in reality. The new form does confirm in the small print guidance that it is not necessary to provide details of the third party, but it is possible that this will be overlooked by many. I share the concerns that were raised, this form is clearly designed with litigants in person in mind. It is intended to ease the pressure on the Courts caused by the increasing number of petitions that were being rejected as a result of well-meaning individuals who had tried to complete the petitions themselves but, without the benefit of advice, had made errors which led to their forms being refused. Yet in spite of this, the way in which the new form is laid out does invite the naming of a third party, and will no doubt be a tempting prospect for heartbroken petitioners, naïve to the additional complications completing this will bring.
In a similar vein to this, is the concern that in designing a form which attempts to simplify the divorce proceedings, and assist litigants in person, so doing will also encourage litigants in person. That in itself may not be problematic, save that of course the potential for errors by those unfamiliar with the process is far greater, and therefore rather than reducing the Court work load, the strain due to errors could in fact be increased. Furthermore, could an increase in litigants in person lead to an increase in defended divorces? This would again place a strain on the Courts and a deterioration in both legal and administrative delays.
Statistics are not yet available as to whether these concerns have come to fruition. In my own experience, I have not received any instructions from aggrieved respondents, or indeed third parties who have been subjected to 'name and shame' adultery petitions. Nor have I received instructions from petitioners who have taken this route and subsequently regretted their actions. But it is still early days. The true picture is only likely to become apparent when the Courts provide an indication as to whether they have experienced complications as a result of the new forms, and whether delays and backlogs are improving. Sadly, I haven't noticed an improvement in the speed at which divorce papers are dealt with by the Courts, but equally, I do not feel there has been any deterioration.
Despite all the concerns about the new forms, it's not all doom and gloom. The forms are distinctly more straightforward than their predecessors. I have no doubt that the lay person attempting to deal with their own divorce will find them far more straightforward, and the wording much easier to understand. As indeed do the lawyers. The guidance given throughout the form is generally useful, and some aspects of the form are an obvious improvement.
The form now provides a very straightforward way in which petitioners can ensure their contact details are confidential, albeit the completion of an additional form is still required. This is of obvious benefit and goes a considerable way towards the protection of the more vulnerable. Secondly, section 10 of the form deals, as previously, with financial claims. Rather than ticking individual boxes to indicate the nature of particular financial claims which might be sought in future, the form now simply asks whether any such claim is to be made. This should surely avoid the immediate, horrified reaction many have when they see that all the boxes are ticked, as used to be the case. The danger that litigants in person indicate that they do not wish to pursue financial claims when perhaps they should, is no different than it was before. The simplification of the part is in my view, and notable improvement.
On the whole it is simply too early to tell whether the new form has had a positive impact and whether the pressure on the Courts has eased. Feedback so far has generally been positive and the forms are clearly more user friendly. One hopes that if people do decide to pursue divorce without legal advice they will now find the process easier, and mistakes will be less frequent. That said, the benefit of legal advice tailored specifically for your situation cannot be replaced, and litigants in person should not be fooled into believing that everything is straightforward, just because the form has been simplified. Financial aspects of divorce in particular will almost always require specialist legal knowledge and cannot be ignored, even where the divorce itself has concluded.