Although it was expected, it was still a relief to have it confirmed that the Government has decided not to increase the court fee for issuing divorce proceedings, from £410 to £750. Such an increase would have caused considerable hardship to many and would have priced many more out of getting a divorce at all, forcing them to remain in broken marriages.
Other reasons given for not increasing the fee included that there was no justification for it (the current fee is already greater than the cost of uncontested divorce proceedings); that it was wrong in principle to seek to increase the cost of court proceedings associated with the breakdown of a family relationship; and that it was potentially discriminatory, as more women than men sought a divorce and it would therefore have a disproportionate impact on women.
However, the current consultation on court fees is not just limited to the fee for issuing divorce proceedings. The Government is also, for example, considering increasing the court fees payable when making general applications within civil proceedings. Often it is necessary to make such applications, for example for permission to amend court papers, for permission to adduce fresh evidence or for an extension of time to take some action.
Such general applications are common in family proceedings. However, in its consultation response the Government accepted that increasing the fee for a general application in family proceedings was likely to lead to similar concerns to those raised in response to the proposal to increase the fee for a divorce. For that reason, the Government is not considering fee increases to general applications in family proceedings.
More good news. Why, then, as a family lawyer, am I still complaining about possible court fee increases?
Well, for a start not all court proceedings relating to what most would consider to be family matters are actually classified as ‘family proceedings’. For example, former cohabitants who are in dispute regarding their entitlement to a share of a property in which they lived with their partner often have to apply for the court to resolve the dispute under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. Such applications are classified as civil proceedings rather than family proceedings, and therefore the rules and fees applicable to civil proceedings apply to them.
But we mustn’t be too parochial. This is about much more than just family cases. It is about access to justice generally. Just like abolishing legal aid, increasing court fees above the rate of inflation (which is currently negligible) obviously makes it more and more difficult for the less well off in society to be able to afford to go to court. I know it sounds trite, but it is nevertheless true: if you can’t afford to go to court then you can have no justice.
I know that there are fee remissions available for those on benefits or very low incomes, but for those earning not a lot more than the appropriate income threshold excessive court fees are going to be a real obstacle to seeking justice.
I know also that times are hard (at least for many), but the justice system should not be a profit-making enterprise, and I’m not even sure that it is appropriate that the courts system should have to recover its costs from its users. However, the Government continually uses the economy as an excuse to make policies towards one or both of those ends, irrespective of the consequences. As a result, we seem to be moving inexorably towards a situation where justice in this country is the sole preserve of the rich. That is why we must continue to oppose the fee increases.