I had the pleasure of attending the At A Glance legal conference in London on Wednesday. One of the speakers was Adam Lennon, the Head of Family Modernisation & Improvement at HM Courts and Tribunals Service. He talked about the Court’s plans to roll out an online divorce system.
Part of the talk involved a demonstration of what it would look like on screen. Those of you who have visited “.gov” websites before will be familiar with the layout. It reminded me of the times I have looked up tax credit entitlements or child maintenance information for clients. I even found myself thinking of the last time I renewed my car tax.
The process was user-friendly. A series of questions are posed with as little legal jargon as possible. This is how it needs to be: Adam estimated that only around 50 per cent of the users would be lawyers. The site gathers information about you at the outset: your name, address, as well as the same details for your spouse. The intention is to capture as much information as possible at this stage in order to minimise the need for more further into the divorce process when it comes to applying for the Decree Nisi.
The process of creating this system has been intensive. We watched a demonstration of the twentieth iteration of the trial system and ongoing work is still being undertaken, altering the questions and the process – all of this subject to a green light from family judges.
As the new system was interrogated by the great and the good of family law at the conference a few issues were identified and acknowledged as still requiring further input:
1/ The new online system will enable parties to file a scanned copy of their marriage certificate. At present we are required to file the original or a certified copy from the marriage registry. Filing scanned copies potentially increases the risk of fraudulent applications for divorce. The response from the courts was that, having carried out an analysis, they considered this risk to be relatively low.
2/ The available reasons for divorce (behaviour, adultery, desertion, two years separation by agreement and five years separation) are selected by ticking a box. We were told that selecting behaviour would give you three text boxes in which to set out your grounds for saying that your spouse had behaved in such a way that you could no longer be expected to live with them. Is three boxes enough, particularly after the recent decision in Owens? The definition of desertion was the other party having left you for two years without your agreement. But there was no mention of the fine subtleties of proving desertion, all of which lead to this being the least used reason for divorce.
3/ You are required to tick a box to opt into an application for financial orders. The problem here is that at the outset of divorce, it is very likely that the person issuing the divorce will think that they do not wish to apply to the court for a financial order – especially people who are not legally represented, They may see that as starting a process which embarks them on expensive litigation. They may not realise the consequences of not ticking that box should they later realise the need to seek these financial orders in order to achieve a divorce settlement. The President of the Family Division, Lord Justice Munby, is keen on ‘de-linking’ the financial process from the divorce process in order to tackle this procedural problem. This issue – like other such procedural problems – can be solved.
4/ It seems less likely that the current practice of sending a copy of the draft divorce petition to the other party will occur online. This is unfortunate, as it is recommended by both the Law Society and Resolution in order to reduce conflict and acrimony in divorce. There will be a natural instinct. once you have completed the online application form, to just press submit and get the petition issued instead of printing off a draft copy and circulating it to all relevant parties to try to reach agreement on what it says. The latter practice was more likely when the petition was filed on paper.
On the whole, I came away thinking that digital divorce forms have lots of good intentions behind them and reflect a move towards a more digital and efficient age, though it is clear there are still some teething problems to sort out.
An online divorce system is inevitable: that’s a fact. It will be a good thing: undoubtedly so. It will have initial teething problems: quite likely. It will not cover every single divorce situation from the outset: also quite likely.
I have seen other reforms over the course of my career. I remember a time when Form Es were in a pilot scheme and the idea of using these questionnaires rather than crafting our own affidavits of means with great artistry seemed an abomination. But the Form E soon became part of the fabric of our process and now we wonder how we ever coped without them. I can see just this happening with online divorce applications as well – and sooner than we might think.