Naming the third party in an adultery application for divorce

15 / 09 / 2017

The Family Procedure (Amendment No 2) Rules 2017 – naming the co-respondent in the application for a divorce

Previously I wrote about the Family Procedure (Amendment No.2) Rules 2017 that came into force on 7 August, with some transitional provisions being in place until 11 September 2017.

I explained that some of the changes being brought in related to changes to the Divorce Petition (application for a divorce) form itself.

Part of the form, specifically section 8 of the new, revised form, has become a hot topic of conversation amongst family lawyers as it is thought that it may potentially encourage the Petitioner (the person applying for a divorce) to name the third party with whom their husband and wife has had an affair (if it is an application for a divorce based on adultery).

The relevant section of the form reads “Adultery cases only – details of the person your partner committed adultery with (co-respondent)… People do not generally name the person their spouse committed adultery with. However, if you have named them in section 7 then you must give their details below. If you did not name them, you do not need to fill in these details”. There are then boxes to complete for the first names and surname of the person, as well as a gap for their address for the divorce papers to be sent.

Conversely, the old version of the Divorce Petition simply asked in the form whether there was a co-respondent and if so details could be given – there was not a whole section entitled “Adultery”.

It is generally recommended against naming the third party – it can greatly raise tensions, as well as costs and timescales as there are more parties in the proceedings. It has been far more usual practice for Petitioners to refer to adultery being committed with an unnamed man or woman.

The guidance on the new divorce application form does, as mentioned above, state that there is no need to name the third person. It also contains the warnings that “If the other person is named, then they will usually become a party to the court case and be sent copies of the petition. Your petition could be delayed if they do not resound and it could cost you more to resolve that issue”.

Family lawyers will generally advise against naming the third party.

The Court rules also confirm that it should generally not be done. In particular, Practice Direction 7A of the Family Procedure Rules states that “2.1 Where the application refers to adultery or to an improper association with another person, that other person should not be named in the application unless the applicant believes the other party to the marriage or civil partnership in question is likely to object to the making of a matrimonial or civil partnership order on the application”.

Resolution (an organisation of family lawyers committed to dealing with disputes in a sensible and non-confrontational manner) also recommend against doing so and point towards the risk of raised tensions and conflict, as well as an increase cost and time.

Whilst it is not thought that the new forms will in any way change family lawyers’ approaches to dealing with matters – no doubt the approach of not naming the third party – will still be recommended to clients; the Family Courts have seen an increase in people completing the divorce application themselves – without seeking legal advice – and there is a worry amongst many people that if acting in person a Petitioner may inadvertently think that they must name the person (despite the comments/guidance on the form if they are not read in full), leading to an increase of applications for divorce naming a third party in an adultery application, in turn leading to the problems referred to above such as, for example, an increase in costs.