Traditionally the parties in legal proceedings are always referred to not by their names but more formal titles. Is it time for this to change?
In the County Court and High Court, the person starting the proceedings is known as the claimant and the person against whom the proceedings are being brought is known as the defendant. This is similar to proceedings in the criminal courts, where the prosecution is generally the Crown (public prosecutions are usually brought in the name of the King) and the accused is the defendant. In the appeal courts, the party appealing is the appellant and the other side is the respondent.
In the Family Court, the parties are instead known as the applicant and the respondent. (Applicants in divorce proceedings used to be known as petitioners, as they were petitioning the court for a divorce, but that terminology ceased to be used with the introduction of no-fault divorce in April 2022, since when the applicant (or joint applicant) now applies to the court for a divorce, rather than petitioning. There is no difference between when applying and petitioning; the latter was presumably regarded as a bit old-fashioned. The only petitioners in divorces now are ones who began their divorces before 5 April 2022 and who have not yet concluded them.
Clearly someone has to be the applicant and someone has to be the respondent, apart from joint divorce applications where the parties are called applicant 1 and applicant 2 (applicant 1 being the person who starts the process first). However, there is potential for confusion.
It is very often the case that the applicant in the divorce application is not the applicant in any related financial remedy application. These are two separate, albeit linked, sets of legal proceedings. Therefore, the respondent in the divorce may decide to apply to the court for a financial remedy order so that the court can decide how to divide their income and assets between them. They are therefore then both the respondent in the divorce and the applicant in the financial application.
Nowadays, where a marriage has irretrievably broken down and a divorce is going to take place sooner or later, it is prudent to get the divorce underway without delay. This is because in most cases, the parties can reach an agreement and they need to obtain a consent order from the court incorporating the terms of their agreement in a legally binding format. They can’t do this until the conditional order (formerly known as the decree nisi) has been made in the divorce. The conditional order cannot be applied for until 20 weeks has passed since the divorce application was issue by the court. (See my blog here about why the 20 week “cooling off” period introduced with the new no-fault divorce law is unnecessary and unhelpful).
Therefore, in many cases, by the time that the finances have been sorted out, the divorce application mostly took place months or even years before. Once the financial order has been made, at that point the applicant in the divorce will need to apply for the final order (once called the decree absolute) in order to bring the marriage formally to an and. I have lost count of the number of times that I have to check the file to remind myself whether my client or the other side was the applicant (or petitioner) in the divorce application.
More importantly, the whole applicant and respondent thing is potentially confusing. It is easy to muddle them up when drafting documents. This is why I would suggest that family lawyers should largely abandon these terms when referring to our clients.
Obviously, a court document needs to show that one party is the applicant and the other is a respondent. However, thereafter, we should refer to them by their actual names. Where formality is appropriate, that should perhaps be to call them Mr this or Mrs that or Ms that etc. Insisting on constantly referring to the parties as applicant or respondent is dehumanising and has the potential for mix ups to happen.
Lawyers are far too prone to pointless formality. When I began practising family law in 1996, correspondence would invariably be phrased in such a way that we referred constantly to “our client” and “your client”. This is much less common nowadays. We are encouraged, particularly by Resolution, to refer to our clients by their names. It is now much less common to see correspondence phrased in this way. In most cases, we now use the parties’ names in correspondence. In fact nowadays, we increasingly even use their first names. This started happening when many of us trained to be collaborative lawyers in the mid 2000’s; the collaborative process is very informal. I increasingly see solicitors doing it who have not trained as collaborative lawyers.
In court documents, referring to the parties as applicant and respondent is still common, but I prefer to use the parties’ names. To be frank, I think it’s easier to understand, and avoids the need to scroll back to the start of the document to remind myself which party is the applicant and which the respondent.
The parties in court proceedings often have a similar excessively formal way of referring to their former spouses and partners. I often receive emails from clients in which they refer to their ex as Mr this or Miss that. That seems downright odd. They are referring to people with whom they were in a relationship for years. They’ve often had children together. Suddenly referring to their ex in such a formal way seems like something out of a Jane Austen novel.
Some solicitors still struggle to address their client by their first names, even in 2024. I generally do so, although I must admit that before I set up my law firm in 2011, I generally was more formal.
Lots has changed since then; no-fault divorce, gay marriage, heterosexual civil partnerships, and stopping wearing ties, for a start. It’s time to call our clients by their names. Wherever possible, couples need to work together, along with their lawyers to agree arrangements for their children and about their finances. Insisting on constantly referring to them as applicant and respondent does nothing, but drive them further apart and makes it harder to reach agreements.
21 September 2024
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