The great court fees scandal, and one way to make it fairer

Family Law|March 21st 2016

Today, as I’m sure all are aware, the fee for issuing divorce proceedings has been increased, from £410 to £550, despite the fact that the actual administrative cost of divorce is just £270 (although as I write this I have not yet seen that the necessary Statutory Instrument has been made* – the whole thing seems to be being pushed through with unseemly haste). The increase has been met with universal disgust and dismay. Marilyn Stowe has called it a ‘misery tax’, and Jo Edwards Chair of Resolution, the association of family lawyers, has said that it “will lead to confusion, hardship, and avoidable additional pain for separating couples”.

It will do all of those things. For example, it will mean those who earn just too much to be eligible for a fee exemption may simply be unable to afford to get divorced, leaving them in an appalling limbo. It will also no doubt mean that there will be further argument over which party should pay the costs of the divorce – introducing more animosity, and therefore making it less likely that the parties will be able to agree other, more important, matters such as arrangements for children and the financial/property settlement.

An applicant should never be charged more to use the court system than their application costs the system. That is something so fundamental that I can’t believe that I (along with many others) am having to say it. Access to the law should not be discouraged by financial penalty.

The other thing that is striking about this situation is that there is at least one group of users of the family courts that take up vastly more of the court’s resources than other users, but still pay the same court fee, which doesn’t even remotely cover the cost that they cause to the system. I am talking about those who embark upon lengthy financial remedy claims. Only last week I came across a case that took up thirteen days of High Court time just for the final financial remedies hearing(s), not to mention all of the previous hearings along the way and the enormous amount of time that the judges would have taken to prepare two long and very detailed judgments. Yet the court fee for this financial remedies application would have been the same as for any other such application (currently £255).

Surely, it would be fairer to all concerned (including the taxpayer) if the fee payable on a financial remedies claim bore some relation to the actual cost involved? It could at least relate to the amount of court time taken up by the final hearing. I don’t know how much one day’s court time costs the system, but for the sake of argument let’s say it is £2000. Should not the parties then pay £2000 for each day that the final hearing takes?

Higher court fees for longer financial cases will not necessarily penalise the wealthy (they can still settle, like anyone else), but they will perform five functions:

  1. Increase court income, obviously.
  2. Ensure that those who use the courts the most pay the most.
  3. Make sure that the parties pay something like the true costs they are causing to the system.
  4. Further encourage settlement, or the use of alternative methods of dispute resolution, such as mediation and arbitration, thereby freeing up precious court time.
  5. Encourage less argument and shorter hearings, also freeing up court time.

I’m not sure exactly how such a system would work in practice. Perhaps the court fee could be payable upon the filing of a time estimate for the final hearing, or maybe it could simply be payable at the end of the hearing, when the exact amount of court time taken up is known.

Whatever, such a system would surely generate enough money (or costs savings in court time) to eradicate the need to penalise those who simply want to dissolve a failed marriage, and who do not cost the system much at all (and probably even less if we are to have an online divorce system, as our President has indicated). This is, of course, assuming that all money generated by court fees goes towards the running of the courts system. Or are our courts to be a profit-making organisation

*UPDATE: I have now seen the Statutory Instrument bringing in the new fee. It was made last Thursday 17 March, giving precisely one clear day’s notice of the change (although the SI was not published on the legislation.gov.uk website until today). Clearly, the idea was to minimise notice of the change, and thereby maximise the profit that it brings. It is quite appalling to treat court users in this way.

Author: Stowe Family Law

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