No one denies that simplifying the divorce process to make it easier, faster, cheaper and more understandable is a laudable aim. Much has been made of the billion pounds that is apparently being invested in an overall reform programme to ‘modernise the courts and tribunal service’, part of which is being spent on online services.
To those of us dealing with the current system on a daily basis, it’s clearly at breaking point. Some of us would prefer to see the billion pounds (given the swingeing cuts that have been introduced at the same time) being spent on restoring legal aid to those who are now unrepresented in court, employing knowledgeable court staff and making court buildings a welcoming environment where users are treated with courtesy.
The use of the online application is not yet available to lawyers and is only currently available to individuals seeking divorce. Apparently, the system has now become really fast and virtually fool-proof. As someone who’s just spent nine months getting a hearing date for a decree nisi that does sound like progress. But do bear in mind that we weren’t starting with the divorce equivalent of Usain Bolt, more like a wheezy old man, so there’s plenty of ground to make up.
An online system for those with relatively simple lives and the ability to understand their rights and responsibilities is something to welcome. And dealing with the divorce itself – dissolving the marriage by securing a decree absolute – should always be quite straightforward. But I would still sound a note of caution. We’re trained to dissuade our clients from arguing over allegations in the petition as we can say to them that it’s not going to make any difference to the decisions the court may make in relation to money or children. We also draft petitions relying on ‘unreasonable behaviour’ in as non-combative and bland a way as possible – and we don’t name co-respondents in adultery petitions unless our clients are very insistent. This check is removed where divorcing couples represent themselves.
In practice, 95% of our time is spent on disputes over children and money. Apparently, forms are going to be introduced to deal with children’s cases in the near future. I am puzzled about this. The court and, in turn, family lawyers are at pains to dissuade couples from going to court over children and they’re encouraged to reach their own informal agreements. What remains are the intractable disputes coupled with high emotion. So how’s that going to work with an online process?
The online process provides ‘advice’ about financial claims. Frankly, it would be better for couples simply to make decisions about their finances without any judicial support and encouragement. The Government ‘Money and Property when a Relationship Ends’ information gives mixed messages. For example, it states ‘you don’t have to do any official paperwork if you agree about how to divide your money and property’. Really? Even when agreeing to transfer the family home or share pensions?
The guidance goes on to state that a financial consent order is required if you want to ‘enforce’ the agreement you’ve reached. It says ‘you can ask a court to make a financial order if you can’t reach an agreement’. This is nonsense. In fact, the main reason why we always advise clients to obtain a consent order is because otherwise their ex-partner’s claims remain live and could be activated at any time in the future.
There’s a reference to deadlines for making a consent order. The guidance states that you have to make an application before the decree absolute is obtained, which is simply wrong. And it leads the uninformed to assume that, once they have their decree absolute, their ex-partner cannot come back and make a claim. (As an aside, this might be an ideal opportunity to introduce time limits on making applications).
There’s also a misleading section on capital gains tax which states ‘you may have to pay capital gains tax on assets you transfer after your relationship has legally ended’. But capital gains tax is payable from the year following separation. It may be years before the relationship ends legally.
These are complex issues. There are legislative sharks cruising beneath the surface that catch out the lawyers, never mind those without any legal knowledge. The Government’s online advice is dangerous and misleading.
And if it’s that easy to process your petition online, the £550 court fee begins to seem like a tax on divorce rather than a fair charge for the work involved.