Digital Divorce Sounds Great, But Don’t Skip Getting Advice
By:4 commentsMay 8, 2018
At midday on Sunday the tranquillity of my bank holiday weekend was disturbed by an email from GOV.UK. There’s clearly no peace for the wicked. Clicking the link in the email I was taken to a press release from HM Courts & Tribunals Service, the Ministry of Justice, and Lucy Frazer QC MP (the latter being Parliamentary Under Secretary of State at the Ministry of Justice). The release breathlessly announced that: “The stress of applying for a divorce could be eased thanks to a new online service that removes the need for paper forms.”
The service, of course, is the new ‘fully digitised’ divorce application, which was launched on the 1st of May and which enables the whole divorce process to be completed online, including payment and uploading supporting evidence. The release tells us that:
“More than 1,000 petitions were issued through the new system during the testing phase – with 91% of people saying they were satisfied with the service.”
“…this simpler and less technical online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms.”
The aforementioned Lucy Frazer, commented:
“Allowing divorce applications to be made online will help make sure we are best supporting people going through an often difficult and painful time.
“More people will have the option of moving from paper-based processes to online systems which will cut waste, speed up services which can be safely expedited, and otherwise better fit with modern day life.”
It all sounds quite wonderful, and perhaps it is, but before we get too carried away with this brave new world there is one major thing we have to consider: most users of the system will still need some proper legal advice.
There are many possible issues that users could run into if they don’t get proper advice, but here are just three obvious examples:
Firstly, in divorce petitions alleging adultery there is the issue of whether or not to name the ‘co-respondent’, i.e. the person with whom you allege your spouse has committed adultery. Naming the co-respondent is optional – the requirement to name them, if their identity was known, was abolished many years ago. The divorce can still go through on the basis of your spouse’s adultery without them being named. However, as any practising family lawyer will attest, many petitioners are eager to name the co-respondent, often as some form of ‘retribution’ for what they have done. I recall often trying to persuade clients against this course of action, as naming the co-respondent can make the divorce unnecessarily more complicated. For example, the co-respondent has to be make a party to the proceedings, and has to be served with the papers. Without proper advice many petitioners are likely to make the mistake of naming the co-respondent when there is no need to, thereby causing themselves a lot of additional stress and problems (concern was recently expressed that the new divorce forms actually encourage petitioners to ‘name and shame’ adulterers).
Secondly, there is the issue of the costs of the divorce. Even if you do it yourself you will have to pay the court fee on the divorce petition (unless you are entitled to an exemption), and this currently stands at £550, a not unsubstantial sum for many. You can ask the court to order your spouse to pay your costs, and even the co-respondent, if you have named them. But should you do so? Might claiming costs make things more complicated, by encouraging the respondent not to cooperate, or even to defend the divorce? You may actually end up wishing you hadn’t claimed costs. Whatever, this is an issue upon which you should really get advice.
Thirdly, many people who do their own divorce without legal advice may not appreciate that there is a connection between the divorce and the financial settlement, and that it may not be in their interests to finalise the divorce by applying for the decree absolute until the financial settlement has been sorted out. Ending the marriage has consequences, for example in relation to the rights of a spouse who does not own the matrimonial home, and in relation to pensions. It is therefore absolutely essential that anyone applying for a decree absolute knows and understands the consequences for them of ending the marriage, before they apply.
Many people who use the new online divorce process may do so without taking proper legal advice, encouraged by the ease of use of the system. However, if they do so they may be taking unnecessary risks.
May 8, 2018