Stephen Gerlis looks at the importance of filling in affidavits properly for divorce proceedings


The Civil Procedure Rules (CPR) almost killed off the affidavit. Witness statements became the flavour of the day. Solicitors lost a lot of tea money.



However, affidavits still remain a staple part of divorce proceedings, being mandatory in support of an undefended divorce petition.



The CPR do not apply to family proceedings (see rule 1.3 of the Family Proceedings Rules), but fortunately the ground rules contained in the practice direction to CPR 32 are virtually the same as under the old order 41 of the Rules of the Supreme Court and Practice Direction (Evidence: Documents) [1983] 3 All ER 33, and so apply both to civil and family affidavits.



Apart from the usual request for 'durable quality A4 paper with a 3.5cm margin', there are other requirements that are not always observed, such as endorsing the first page and the back sheet with the case number and the initials of the deponent, and of the person before whom it was sworn. Each page of an exhibit must be numbered consecutively, and the CPR extends this convenient requirement to the affidavit itself.



Unless there is a specific reason for not doing so, multiple related documents, such as correspondence, should be bundled together, in chronological order, in one exhibit and not exhibited separately. The exhibits should have a proper front sheet, which should be secured to the documents. It is preferable not to staple bundles of documents together. They should be fastened in a way 'that does not hinder the reading of the documents'.



Some of those administering oaths do not understand how to mark exhibits. Just writing 'A' on the document and signing it is not enough. There has to be a declaration on the exhibit, headed with the name of the proceedings in the same way as the affidavit. The formula is: 'This is the exhibit marked "A" referred to in the affidavit of [name] sworn before me this [date].' That is why a front sheet ought to be used. And that top document or front sheet also has to be endorsed in the top right-hand corner in the same way as an affidavit.



Avoid exhibiting orders of the court. Official copies of such documents prove themselves.



Practitioners ought to have fewer problems with affidavits in support of divorce petitions because these are printed forms, but the extent to which mistakes are made is surprising. The basic affidavit is form D80, available in five separate forms A-E, depending on the ground. Thus D80A is for adultery and D80E for five years' separation. If the petition has been amended, the affidavit should make it clear that it is verifying the petition in its amended form, not as it originally stood.



Why exhibit a copy of the process server's affidavit? That affidavit can stand by itself.



By far the biggest difficulty is caused when the parties are still living under the same roof. The form of affidavit requires parties to give full information as to living arrangements if the parties have lived in the same 'household' since the date of separation/last incident/knowledge of adultery, etc. Those details are supposed to include arrangements for sleeping, cooking, payment of bills and so on. The origins of this may be found in the principles of condonation - a seemingly quaint obstacle to the obtaining of a divorce but still good law. However, some practitioners seem reluctant to provide the information in the affidavit, stating it is 'not applicable'.



Where parties live together for more than six months after the last matter relied on, or since separation, the court can take that period into account when deciding whether or not the marriage has broken down irretrievably. In cases of adultery, cohabitation for more than six months since the petitioner became aware of the adultery results in a bar to the petitioner relying on the adultery as a ground for divorce (see section 2(1) Matrimonial Causes Act 1973). A similar provision applies to behaviour petitions (section 2(5) of that Act). However, overriding all of this is section 1(3), which requires the court to enquire, as far as it reasonably can, into the facts alleged by the petitioner. In addition, section 1(4) states that a decree of divorce will be granted by the court 'unless it is satisfied on all the evidence that the marriage has not broken down irretrievably'.



As yet the judge's role in relation to undefended divorces is not as a rubber stamp. We have to consider whether, on the papers, the marriage has broken down irretrievably.



If, since the petition was issued, one of the parties has left the premises, or indeed there has been any material alteration, there is provision in the standard affidavit for those alterations to be mentioned. However, depending on the circumstances, it may still be necessary to give full details of living arrangements while the parties were under the same roof, for example, where the petition is based on desertion, or separation, and one party has only recently left the joint address.



Where the petition is based on desertion or separation, it is important to complete the section in the affidavit that requires the addresses at which the parties have lived since desertion or separation, together with relevant dates. Make sure the dates match the date of separation as stated in the petition. Litigants in person are particularly prone to getting this wrong - often putting inconsistent dates or no dates at all.



The question about when the petitioner considered the marriage was at an end is a trap for the unwary (consider Santos v Santos [1972] 2 All ER 246).



Two final matters: if the petition contains no prayer for costs, the petitioner cannot change that position by advancing a claim for costs in the affidavit. If, on the other hand, the petition does contain a prayer for costs, then the petitioner may withdraw that by simply deleting the claim for costs in the affidavit.



Finally, if the affidavit is returned because it has not been completed properly, as set out above, errors cannot be corrected by a simple letter. The affidavit will have to be amended appropriately and resworn.



District Judge Gerlis sits at Barnet County Court