there are few headlines newspapers love running more than “fat cat lawyer does this/that/the other”. politicians adore any sound bite that gives them a chance to boast they will bash “fat cat laywers”, with one minister promising some years ago to make them squeal. then they get transferred to some other department and promise to bash teachers or doctors or taxidermists instead. any story about a bent lawyer is lapped up enthusiastically by the press and a common theme is often that lawyers are lazy, greedy, overpaid and/or dishonest. however, how does this over simplistic viewpoint impact on the fabric of our society? ok, sounds a bit heavy but bear with me for a moment.
of course there are some dishonest lawyers, who do a great deal of harm to the image of our profession and for example the solicitors’ regulation authority shut down 5 law firms this week alone for suspected dishonesty! there are some lazy lawyers and some greedy lawyers and some overpaid ones (not me, sadly), as with any other walk of life. however, is it helpful for various sections of the media and politicians to depict these dubious qualities as the norm for anyone who takes a law degree?
a charity called citizens advice thinks not.it recently prepared a report on the experience of people who represent themselves in family proceedings without a lawyer, known as litigants in person. it concluded, perhaps unsurprisingly, that litigants in person often achieve worse outcomes than represented parties due partly to the stress, responsibility and loneliness of going it alone. the report showed that 90% of self represented people found that the experience negatively affected their health, relationships, work and/or finances, sometimes resulting in job loss or debt. I suspect that many family lawyers battling with the court system might complain of similar symptoms! with hindsight, 70% of litigants in person thought they would have been better off with representation. well, I wouldn’t want to carry out my own heart transplant without a doctor somewhere at hand.
the charity concluded that the rise in the number of litigants in person was largely the result of recent cuts in eligibility for legal aid. absolutely. however, the report also said that some people chose to act alone because they either mistrusted lawyers or didn’t realise how much value they could bring to the table. another problem is lack of clear information about the services provided by lawyers and difficulty in comparing different firms as a result.
so to some extent family lawyers can give themselves a pat on the back, most of whom are well meaning, hard working and skilful professionals who want to help people solve problems in return for a decent salary. the legal profession has got better at making the law more accessible to “normal” people, for example by doing away with a lot of the old latin phrases and stuffy etiquette, although I still struggle to understand some of the convoluted legislation coming out of parliament even after 38 years in the field!
however, it’s not all good news. law firms can still seem unwelcoming and inaccessible, so that the idea of going to a lawyer is an intimidating thought for many people. also there is no doubt that lawyers are still expensive. people are understandably concerned by the cost involved in obtaining representation, especially where the lawyer is unable to say how much the process will cost due to charging by an hourly rate rather than a fixed price. it’s very difficult to predict the cost of a particular case because this can vary so much depending on how much work is involved, but clients hate hourly rates, just as I hate it when my plumber draws in his breath and asks “who did that botch job”.
law firms need to encourage potential clients by becoming more friendly and approachable, by providing appropriate free information to de-mystify the law, by being more flexible in how legal services are delivered, and where possible by offering fixed fees. many forward thinking firms are already well travelled down this path, and justdivorce.co.uk is (I like to think) a worthy contribution to this important journey from Josiah-lake gardiner.
hot off the press and like getting blood from a stone, news has just been squeezed out of the ministry of justice that the court fee on issue of a divorce petition is to rise from £410 to £550, a whopping 34% increase. even worse, the increase will apparently become effective next Monday 21 march, thereby effectively preventing people from getting their papers into court for issue before the deadline expires over the weekend. how can there be any possible justification for a government department to behave in such a secretive, non-communicative and non-consulting manner?
furthermore, how can there be any justification for this inflation-busting hike, given that the actual administrative cost of a divorce is estimated at about £270? £550 is a large amount of money for anyone, and a huge sum for many that might put them off applying for a divorce at all, thereby possibly stacking up all kinds of problems in the future for themselves, their spouses and any children of the family. it is more that double the price charged by www.justdivorce.co.uk for its online undefended divorce service.
can it be right that government should make a profit from the court system and the people who need to use it, often at a time of crisis in their lives? presumably this is another example of this administration providing “access to justice”. ho ho.
the services provided by justdivorce.co.uk are rightly described as “online”, although I’m not sure all our competitors can justifiably make the same claim. our clients complete an online questionnaire to get the ball rolling and then check draft court forms and letters by logging onto their personal online account. they receive emails to notify them when there are documents available to review on our website.
the bit we can’t control or improve is when communication is required with the court itself, which at present is still a paper based postal system. a divorce petition has to be lodged as a hard copy under cover of a letter, together with an original marriage certificate and a cheque or postal order for the court fee (currently £410). the court serves all documents on the parties by post. hence, no matter how slick and automated our end of the chain might be we still have to fall back onto traditional forms of communication at the court end, which can cause delays beyond our control.
according to sir james munby, the energetic president of the family division, this may be about to change. speaking recently at the family law bar association annual dinner (be thankful you weren’t invited) sir james announced that plans to digitise divorce proceedings could be implemented by early 2017. he said that a paperless court should be achievable within the next 4 years, rather than being a distant future vision. he envisaged a system apparently very similar to the bespoke software already used by justdivorce.co.uk, so the future has already arrived in this corner of the world wide web! I have also heard him speak on this subject and there is no doubting his vision and enthusiasm for this project, which may well carry the day. he is to be applauded for such forward and dynamic thinking.
sir james also referred to the growing problem of litigants in person representing themselves in court proceedings because they can’t afford a lawyer. this issue increasingly preoccupies judges who have to deal with the fallout in family cases at the coal face, which can often be highly emotionally charged. he thought that an online system should help such people, saying “In times of austerity, and faced with ever-increasing numbers of litigants in person, we must constantly strive to improve, to streamline and to simplify the system”. this must be correct, if they get it right.
and there lies the rub. as with all IT systems, if it is to work correctly the project must be properly resourced and funded. the treasury will therefore need to be persuaded that the move to an online system will result in a significant saving for the justice ministry budget – this seems to be what drives most “Justice” initiatives these days, possibly sometimes at the expense of justice itself. unfortunately there has been a significant track record of government funded IT projects crashing and burning, for a variety of reasons.
at justdivorce.co.uk we will certainly be keeping a watch on these developments, not least because any such changes are bound to have an impact on the way we conduct our online business (and offline business via Josiah-lake gardiner). hopefully in a good way however, so bring it on!
in july 2015 the government launched a consultation regarding its intention to close 91 courts and tribunals, being one fifth of the total across england and wales. it has recently been confirmed that 86 courts will actually be closed over the next 2 years, now that the consultation period has finished.5 courts have been reprieved and plans have been modified in relation to 22 others in light of responses to the consultation. these closures inevitably mean that it will take longer for a significant number of people to get to court to attend hearings which usually have a very significant impact on their lives. at first blush one might think that taking such a step would make it more difficult for people to gain access to justice, which is after all a fundamental human right (sorry, daily mail readers). the more cynical amongst you might even think that this is in fact a treasury-driven cost cutting exercise designed to achieve political targets rather than to protect the rights of its citizens.
apparently not! justice minister shailesh vara accepted that local communities have strong allegiances to their local courts, but proudly pointed out that 97% of users would still be able to get to their required court within one hour by car after the closures take place. he explained that “changes to the estate are vital if we are to modernise a system which everybody accepts is unwieldy, inefficient, slow, expensive to maintain and unduly bureaucratic.” that seems to be rather a surprising admission from a captain of the ship, but it is certainly one that legal practitioners dealing with the courts on a daily basis would recognise. i don’t know the stats (help anyone?), but presumably there is a sizeable proportion of the population who do not own or have access to a car. this might be a bit of a surprise to a tory minister, and one recalls norman tebbit’s exhortation in the dark days of thatcher’s Britain for people to get on their bikes to go and find work. how simple! one wonders how long it will take non-car owners to get to court by public transport or on foot, or maybe it doesn’t matter.
as always, the situation is not entirely simple. mr vara stated that the doomed courts are used on average less than 2 days per week and if that is correct then there may be some rationale for closure other than straight cost cutting. however it is difficult not to be cynical about such initiatives, given for example that the recent savage cuts to legal aid eligibility were also described euphemistically as encouraging access to justice! in addition, court fees for issuing proceedings are rising very rapidly and for example the fee for issuing a divorce petition seems likely to increase shortly from £410 to a whopping £550.
of course those parties who are able to reach agreement on the grounds for their divorce would not have to go to court at all to get un-hitched. they could simply order the justdivorce.co.uk undefended divorce online service and get everything done by post for a transparent fixed price. they may even be able to get their finances sorted out the same way if everything is simple and agreed. now that’s what I call access to justice!
this blog is particularly for the information of anyone who completed a form E (financial disclosure form) in divorce proceedings between april 2014 and December 2015 or april 2011 and January 2012, using the online form published on the hmcts website (https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service). my source is a written statement to parliament by shailesh vara mp and the ministry of justice on 21 January. the statement confirms that just before xmas 2015 an error was discovered in the online version of the form e on the site. as a result, the automatic calculator used to populate the form wrongly calculated the total of the individual’s net assets by failing to deduct certain liabilities. the fault was corrected on 14 December 2015, but unfortunately the problem doesn’t end there.
form e is a very important document in financial remedy proceedings ie an application for financial orders within divorce or civil dissolution proceedings.(for more information see https://www.justdivorce.co.uk/financial-clean-break). it is completed by parties to make disclosure of their income, assets, debts etc and the court cannot decide how to divide the pot fairly until it first identifies how big the cake is. the error in the online form means that the court (or the parties themselves if they negotiated their own agreement) was using incorrect figures when reaching it’s decision, and therefore the outcome may have been unfair. mr vara did fairly point out however that this may not inevitably be true in every case, as various factors are considered by the court in addition to the bare financial figures.
hmcts staff have been able to identify 3,638 files where the faulty form e was used, resulting in incorrect figures being produced and relied upon by the court and/or the parties to the proceedings. about 1,400 of these cases are still live, and hmcts has been able to notify the court in each case of the problem so that the figures can be corrected before a final decision has been reached. this may however result in additional legal costs for the affected parties and one wonders if compensation will be offered to those who suffer detriment by relying on the hmcts website in good faith.
this leaves 2,235 cases which are closed and in which incorrect figures may have been relied upon to provide unfair outcomes. I understand that hmcts is writing to all these parties notifying them of this problem and explaining the possible options which may be available to them, such as applying to the court to vary or set aside any order granted. a new form has been created to provide for such applications and the usual court fee will be waived. all this is helpful, but it may be difficult for litigants in person to make an application of this nature and I have not seen any offer by hmcts to reimburse to parties their legal expenses. don’t hold your breath.
there is also a dedicated email address to contact for people who believe they may have been affected by this error, being formE@hmcts.gsi.gov.uk.
I should add that we do not generate form e at justdivorce.co.uk, because our financial clean break order service relies upon the full consent and cooperation of the parties and therefore form E is not required. of course we do everything we can to keep all our online forms fully up to date and I am confident as i write that they are all completely accurate. however, it would be helpful if practitioners could be given a little more notice of changes in court forms!
as the law has stood in england and wales since 1973, if a husband and wife have not already been separated for at least 2 years then neither of them can get a divorce except by making allegations of bad behaviour or adultery. the reasoning behind this is that the institution of marriage would be fatally undermined if divorce is made too easy and so parties should have to show fault before bringing their marriage to an end. making it difficult to get divorced is also seen as benefitting any children of the relationship, although this is apparently contradicted by recent research from resolution (www.resolution.org.uk) showing that 8 out of 10 children would prefer their parents to split up if they are unhappy. hence there has always been strong opposition to attempts to introduce “no fault divorce”, where the parties can end their marriage by mutual agreement without having to prove misconduct. the sabotage of the family law act 1996 is a typical example of this conflict, illustrating the strength of the religious lobby in the house of lords (an un-elected body, incidentally).
on the face of it this approach may seem logical, but family lawyers are familiar with the practical difficulties it raises at the coal face every day. the requirement to make allegations of bad behaviour immediately risks raising the temperature unnecessarily. it also actively encourages the divorcing couple to adopt unreasonable and aggressive positions from the start, which in turn can polarise attitudes and create conflict where none existed before. this can increase legal costs dramatically and foster acrimony and delay. how can that possibly bolster the institution of marriage, or help children caught up in family breakdown?
family law is a specialist area of legal practice requiring a different mind-set to other forms of litigation. a good family lawyer will always work to reduce conflict in accordance with the resolution code of conduct and will do everything possible to keep the family out of court altogether, for example by considering alternative forms of dispute resolution such as mediation. indeed we are just coming to the end of family dispute resolution week, with that specific objective in mind. there are legitimate ways and means of achieving a consensual divorce even under the law as it currently stands, if both parties and their lawyers where instructed adopt a sensible and conciliatory approach. see for example https://www.justdivorce.co.uk/unreasonable-behaviour. however, there are still far too many lawyers out there with the old aggressive approach, who often fan the flames and raise emotions rather than taking the heat out of the situation. this attitude can have a terrible impact on divorcing couples, at great personal and financial cost to the parties and their children. in my view these lawyers rarely do this cynically to run up legal costs – they are just naturally adversarial, and usually the ones who won’t speak on the phone.
fortunately there now seems to be a fresh momentum for no fault divorce, again spearheaded by resolution. last month a no fault divorce bill introduced into the commons by mp for south norfolk richard bacon was passed for a 2nd reading despite attracting predictably stiff opposition from conservative mp sir edward leigh. mr bacon contended that his bill would not actually make divorce easier, but would remove the need for divorcing couples to throw mud at each other. he pointed out that one can already get a quickie divorce in 5 months, although in fact it could be even faster than that in a simple case. mr bacon proposed that the divorce process should be lengthened to maybe a year, to counter any suggestion that no fault divorce would make it easier to get un-hitched.
personally I am sure that the no-fault route is the way to go, even if it means re-drafting our wonderful undefended divorce online service or even putting us out of business! I am not at all so sure however that introducing a one year delay in the process is a good idea. delay tends to be a bad thing generally in family cases, especially where children are involved. it may be better to focus on how the parties will come out of the process the other side, for example by helping the parties to become single parents. it will be interesting to see where we go from here.
as clients of justdivorce.co.uk will know, the present fee paid by a petitioner (the person issuing a divorce petition) to the court service to process a divorce or civil dissolution is £410. this fee is paid upfront when the divorce petition is sent to the court for issue and for most people it’s a significant chunk of money. the last increase was in july 2013, just over 2 years ago. worryingly, the ministry of justice (moj) has recently announced a consultation and review of court fees across the board, including the family court. i say worryingly because in other areas of law there were increases only 6 months ago of 600%!
the proposal on offer is to raise the existing fee for issuing a divorce petition from £410 to £550, a whopping inflation busting increase of over a third. however, the law society reports that the moj’s own research suggests that the true administrative cost of dealing with a divorce petition is £270. coincidentally this equates almost exactly to the fee of £269 charged by justdivorce.co.uk for its undefended divorce service, although I suspect that we carry out significantly more work in delivering our online offering. on these figures government is proposing to make a profit of £280 on every divorce handled by the court service. it is worth noting that the service provided by the courts to its users can be variable, particularly at present while the new regional divorce centres are bedding in. see my previous blog of 3 july this year for more detail on that development. furthermore, yet more court fees are payable on top of the initial fee if the parties need a judge to deal with any children or financial issues arising within the divorce proceedings.
this statement of intent from our leaders raises 2 serious points. firstly, there must be a chance that a court fee of £550, possibly in addition to lawyer’s fees for professional advice, will put some people off the whole process completely for financial reasons, leaving them still married and in limbo when they should be getting themselves divorced. maybe this could also have a knock on effect on any children on the family?
secondly, government ministers have spoken a great deal in recent years about the importance of access to justice. yet at the same time they have taken drastic measures which seem designed to achieve exactly the opposite effect, for example by largely removing the availability of legal aid from areas such as family law and personal injury work. far more knowledgeable commentators than myself have been warning consistently of the wider consequences of these apparently cost cutting measures for society as a whole. it is disappointing when politicians retaliate with the easy but cheap shot that this is just another example of fat cat lawyers seeking to feather their own nests.
we all have to accept that we live in difficult times, and i can allow that our society just may not in future be able to afford what perhaps we once took for granted. however, the ability of individual citizens to go to court and obtain redress under the law of the land must be one of the most fundamental freedoms that we possess. it should be cherished wherever possible, not undermined.
can it possibly be right as a matter of principle for government to profit from the court fee system, thereby effectively taxing people who seek the protection of the law? the president of the law society and many others are adamant that it is not, and i agree with them.
I’m sure there are people out there who believe that online divorce providers like justdivorce.co.uk are sinful, for undermining the institution of marriage and making it easier for people to get divorced. I do understand that argument, although having been a family lawyer for over 35 years and counting I am also conscious of the misery suffered by spouses and their children trapped in unhappy marriages.
everyone has their own moral code. all of us are different and certainly none of us are perfect. personally I regard as morally reprehensible those websites that actually encourage spouses to commit adultery during marriage. a notorious example for all the wrong reasons is Ashley Madison, whose strapline is “Life is Short. Have an Affair – Guaranteed!”. the site describes itself as the world’s leading married dating service for discreet encounters and even has an infidelity news feed.
at the risk of sounding like mr angry of cyberspace I really think it awful to be actively encouraging married people to commit adultery for profit. apart from fostering deception between people who have committed their lives to each other, there is also the obvious risk of harm to any children of the marriage or relationship. does it feel like the last days of the decadent, crumbling roman empire to see sites like these (and maybe some would include justdivorce.co.uk) trading confidently without public condemnation, or even a good dose of tory MP outrage?
understandably, Ashley Maddison emphasises that it is an SSL secure site, that it is 100% discreet, and that it is the recipient of a trusted security award. it boasts over 41 million anonymous members, yet despite these precautions the site hit the headlines last month in the most embarrassing fashion. a group of hackers called the impact team claimed to have broken into the site and made public the names and confidential information relating to numerous registered users, including various high profile personalities and people in positions of public trust.
impact blamed the site’s users themselves, stating – “Find yourself in here? It was ALM that failed you and lied to you. Prosecute them and claim damages. Then move on with your life. Learn your lesson and make amends. Embarrassing now, but you’ll get over it.” I’m not sure that 2 wrongs make a right in this way and clearly these incidents raise serious privacy issues for providers and users of the internet. it seems almost impossible to block hackers who are determined to break into a site, as the US military has found to its cost. presumably numerous law suits will follow in litigation mad America from victims of these embarrassing disclosures, and maybe this in itself will bring the site down.
of more local significance is the fact that there are apparently more than 1 million users of Ashley Madison registered in the UK. some of these details are bound to come into the public domain, as suspicious spouses sift through hacked information for incriminating evidence against their errant partners. will this lead to a spike in the number of divorces in England and Wales based on adultery? quite possibly. could the mere fact of registration on Ashley Madison constitute evidence in itself of adultery? in short, no. however it would certainly fan the flames of any doubts the other spouse may already be harbouring.
instead of registering with sites like Ashley Madison in search of thrills and illicit sex, maybe the better option would be to register with justdivorce.co.uk and get a divorce before starting another relationship? is that so evil?
as reported in previous blog posts, the family court is presently undergoing significant changes. one example is the ongoing creation of regional administrative hubs around the country, which will be responsible for issuing all divorce petitions within the catchment area for each hub. the new divorce unit for London and the south east is in bury st edmunds (of course), and a briefing session was arranged for the press, public and users of the new hub towards the end of may. at this event it was claimed on behalf of hmcts, which operates the court service, that 40% of new petitions sent to the courts for issue are rejected. some of the common reasons cited are really basic stuff, such as omitting key information, failing to include the court fee or enclosing unsigned papers. this really is a worrying statistic and certainly not one that remotely applies to justdivorce.co.uk!
it would be interesting to peek at a breakdown of where these rejected applications come from. presumably the main culprits are sloppy or inexperienced solicitors, sloppy or inexperienced online divorce providers, badly supervised support staff of the aforementioned and litigants in person who, understandably, are not familiar with the process. only the latter have some excuse. although attempts have sensibly been made to simplify the divorce process with litigants in person in mind, there are still some procedural steps that are easy to get wrong, plus some genuinely complicated techie issues, such as establishing jurisdiction where one or both parties live abroad(see http://www.justdivorce.co.uk/jurisdiction).
in my view, part of the problem lies with the court itself. like many public bodies the court service seems to be over worked and under funded and it is currently taking several weeks for even simple applications to be processed and issued by the courts. the facility to lodge applications in person at court is becoming severely restricted in the absence of urgent circumstances. court staff seem to be less and less experienced and sometimes do not appear to understand the law relating to various relevant issues, such as how a person can legally change his or her name. we have found that on occasions a divorce petition has been rejected by court staff for reasons which are simply wrong, as has been accepted when the papers have been returned with a letter from us putting them right.
as part of the reorganisation of the family court, “legal advisors” rather than district judges will now deal with some of the stages involved in the divorce process, such as checking new petitions. again this may well be a sensible development, provided it is properly resourced. although I have seen a fair bit of information about these developments I have yet to read a clear summary of the qualifications and experience these legal advisors are required to have. hopefully they are being properly trained and will adopt a positive attitude to their role and will not for example feel a need to make their mark by rejecting petitions for very minor irregularities. all of us involved in the divorce process, including the district judges, must remember that we are there to serve the parties to the proceedings. they pay a lot of money for the privilege, as the court fee to issue a divorce petition is currently £410, a lot more than the fee charged by justdivorce.co.uk (£269).
another possible niggle with the new legal centres is that the person intending to issue the petition should now insert his/her home postcode into the courtfinder website search engine(https://courttribunalfinder.service.gov.uk/search/) to identify where to send the papers for issue. we are currently experiencing some difficulties around this as well, and it is important for this website to be kept closely up to date with the changes so that parties can choose the correct court first time round.
sensible attempts to increase efficiency and reduce delay must be welcomed, and the present system is creaking in both areas. however the new legal hubs must be properly funded to ensure that the system does not cause even more frustration for court users, both professionals and litigants in person.
of course everyone makes mistakes, and I would not claim that at justdivorce.co.uk we have never got it wrong. I can say confidently however that we nearly always get it right.
hot on the heels of my last blog post on 31 may (this divorce is unfair!) comes a joint report from the universities of warwick and reading, with the results of research into a widespread perception of bias against fathers in cases involving children. the report concludes that men are in fact treated fairly when seeking contact (often wrongly referred to as access) with children and are “overwhelmingly successful” when doing so.
the report also found that men were as likely as women to be successful on an application for sole residence, that is an order that a child of the family should live with one of the parents alone (formerly known as custody, but now called a child arrangements order).
more evidence apparently that a law firm which targets men as the down trodden victims of the family justice system is wide of the mark. however the study involved 200 cases – is that enough to provide reliable conclusions? no doubt this emotive debate will run and run.