Naming and shaming in divorce
Is the hype over the new court form justified?
In an effort to update the antiquated Divorce Petition in a bid to make it more user-friendly, it appears that concerns have been sparked that the new form may encourage more people to ‘name and shame’ when it comes to filing a petition based on adultery.
Despite the media frenzy depicting this as a wholesale change to divorce, it has always been possible to name the other person with whom your husband or wife has committed adultery in a divorce petition based on adultery. This person is referred to as the co-respondent and by virtue of being named formally, becomes a party to your divorce proceedings. As Family Lawyers, we would generally advise the petitioner to refrain from naming the co-respondent, as by doing so, that person will be required to engage with the process by confirming receipt of the petition that has been served upon them (which they may not be willing to do).
The new form has been designed to assist litigants in person navigating the divorce process. It, therefore, removes a lot of the legal language and asks the petitioner questions to determine the issues at play. The aspect that has caused alarm in the press is that section 8 of the new form asks for the name and address of the person with whom your spouse committed adultery. However, the notes at the side of the form clearly state that “it is not normally necessary to name the person your spouse committed adultery with; you should only consider doing so if the petition is likely to be disputed.” The form goes on further to say that if you do include their details they will be served with a copy of the divorce petition and “your petition could be delayed if they do not respond and it could cost you more money”.
In reality, nothing significant has changed, save that the form is now more user-friendly. It is of course possible that if litigants in person do not read the side-notes to the form, they may simply include the details of the co-respondent where they may not have done so previously and this may (at least initially) see a rise in the number of co-respondent’s named in divorce petitions although it seems unlikely that the new layout will lead to a whole new wave of litigation involving co-respondents in adultery petitions.
In any event, it is advisable to seek legal advice before filing a petition with the court. Depending on the individual circumstances, it may be more appropriate to base a petition on unreasonable behaviour, rather than adultery. For example, if your spouse is unlikely to admit being unfaithful then you may have difficulty in proving it took place. This could result in your divorce being more drawn out and costly. At SA Law we would always suggest that seek early legal advice so as to properly understand your position as, sometimes the information included within your divorce petition can have a bearing on the rest of your case when it comes to resolving your finances or dealing with arrangements for your children.