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.
the telegraph reported recently that a group of women led by michelle young, who feel the divorce courts have left them short-changed, have joined forces to help others in their position. mrs young was involved in particularly acrimonious, long running and expensive divorce and financial remedy proceedings. she and others have clearly been left feeling that many women are treated unfairly by the family justice system in England and wales. this claim runs contrary to the general belief, which of course may or not be true, that London is the divorce capital of the world and that wives do better than husbands in financial cases here.
yet at almost the same time the independent reported that an American law firm which acts for men only is about to set up a branch in London. apparently they told their American male clientele reassuringly that “we’re going to help you keep the dollars you earned”. claims have been made that firms such as these are “about empowering men, not bashing women.”, although this approach may feed on a perception that the courts are biased against fathers in disputes involving children in particular. similarly, there is a certain number of lawyers who have gained a reputation for ferociously pursuing claims on behalf of vengeful wives against reluctant husbands – not an enviable reputation in my view, although it may well be good for business.
part of the problem is that these opposing views are based on little firm factual basis. most family court proceedings are held in private and are not reported due to the personal nature of the issues in dispute, particularly where children are involved. the current president of the family division is keen to make the family courts more transparent so the public can be educated about how it all works, but this campaign is beset with obstacles. it is the juicy salacious cases that sell newspapers, not the run of the mill disputes which make up the daily business of the family court.
perhaps an even bigger problem is the intensely personal nature of family disputes, which creates a tendency for parties who don’t get the “right” result to feel cheated and hard done by. for example, in children disputes the court is obliged to regard the interests of the children themselves (and not the parents) as the paramount consideration. this is absolutely correct, but those parents who are unable to elevate their children’s interests above their own will often be left bitterly (but unreasonably) dissatisfied with the outcome. in financial claims the court has a very wide discretion and is tasked to achieve a “fair” outcome. fairness is a very subjective concept, which can lead to widely differing and somewhat unpredictable results. this again can result in bitterness and a sense of perceived injustice.
in truth, these claims of gender bias from both camps simply illustrate the difficulty and complexity involved in family law disputes. not only are these cases often highly emotionally charged, but also the law applied to them is outdated and in need of reform.
personally I am suspicious of law firms and lawyers who cater only for men or women, to the exclusion of the other sex. I think this potentially blinkered approach can lead to a siege mentality and encourages parties to approach divorce proceedings with a combative and mistrusting attitude. it also obstructs one of the most important elements in the skill set of a good lawyer, namely the measured ability to see both sides of a dispute.
it’s worth remembering that “online” divorce is no different to “normal” divorce as such. the law, the court procedure and the forms are the same. it is simply the method of delivery that is different, in that online divorce advice is provided primarily via the internet and email, at least if the service concerned is genuinely online. both online and normal legal services provided by firms of solicitors are regulated by the solicitors regulation authority (the SRA), which supervises the activities of all solicitors regardless of the nature of the operation concerned. however, there is a large number of companies offering quickie divorces and such like online which are not firms of solicitors and therefore are not regulated or controlled in any way, despite the fact that they are clearly offering legal services. some of them may even be breaking the law by performing work which can only be done by solicitors (“reserved legal services”).
against this backdrop the results of research commissioned by the legal services board and the legal services consumer panel was recently published, which sought to identify whether or not there are any practical problems or difficulties arising for consumers as a result of these gaps in the regulation of online divorce. the outcome of the research was largely very positive and for example 83% of those using online services were satisfied with the outcome (although the figure was similar for users of traditional law firm services). these people are 3 times more likely to recommend their online provider than users of high street firms.
the good news goes on. the chair of the consumer panel said that consumers of online services generally reported ‘quicker, cheaper and less stressful’ experiences than those in face-to-face cases. the divorce was typically faster for online users, who felt that the process was easier than they had anticipated and involved less effort. so far so great for justdivorce.co.uk.
however, LSB chairman Sir Michael Pitt, stated: ‘The benefits of online service delivery are obvious. The regulatory risks however are less well understood and this research seeks to investigate whether there is any evidence of these risks translating into problems in practice for consumers. I am pleased to say that this unique research shows no evidence of any such problems occurring.’
I find this statement slightly more problematic. there is certainly a valuable place for online fixed fee divorce in suitable circumstances, for example where the facts are simple, both parties want a divorce and they are capable of cooperating sensibly together. however, even in that situation the divorce represents an important legal process with potential pitfalls and problems. a botched divorce can cause considerable delay, distress and possible extra cost.
even more seriously, many online providers also offer services and advice concerning the financial aspect of divorce, including applications for financial orders. one gets the impression that the quality of these services is much more hit and miss, and that some of the advice on offer is not of a good standard. the issues relating to financial outcomes on divorce can often be far more complicated than the divorce itself and so there is much greater scope for online users to suffer serious detriment from receiving bad advice, the consequences of which can be disastrous. just because a case is suitable for an online divorce that certainly does not mean that the finances can be sorted out in the same way. even worse, online users may get divorced without ever receiving any advice at all about the financial issues flowing from the process. this can have very serious consequences (see for example the recent case of wyatt and vince, referred to in my last blog).
justdivorce.co.uk is operated by Josiah-lake gardiner, a firm of solicitors which is fully regulated by the SRA, and so clients can be confident that high professional standards are maintained in the delivery of our online services. however, many or even most online divorce firms out there on the internet are simply companies who have identified a perceived gap in the market and may have no professional qualified lawyers involved in the delivery of their legal services at all. they are not subject to any independent review or control in relation to their activities. given the importance of divorce and related financial work I find it hard to believe that the expanding online divorce market does not require any independent regulation at all. one thinks of the similar example in personal injury work, where a decision was sensibly made that claims managers (or “farmers”) should be subject to regulation for the protection of consumers.
it is certainly true that online divorce tends to be much cheaper than using a high street solicitor, and it may be that the cost of traditional legal services has become too high for many people to afford, particularly where fees are based on hourly charging rates. surely however cost cannot be the only benchmark for the champions of consumer rights? what about standards of service, quality of legal advice, proper insurance cover and rights of redress? is this another example of lawyers being unreasonably squeezed out of areas of work that are seen as being unnecessarily shrouded in legalese and restrictive practises? or am I just being a typical fatcat lawyer trying to keep out the competition and maintain a cosy professional monopoly? you be the judge.
THE INTERESTING BIT.
wyatt and vince is one of those family law cases the press loves – it has everything apart from a murder or an orgy. “EX-WIFE’S DIVORCE WIN 23 YEARS ON” screamed the london evening standard on 11th march 2015, as it explained that dale vince and kathleen wyatt split up in 1984 and divorced in 1992 after spending much of their 2 year marriage as new age travellers living in a peace convoy and surviving on state benefits. after the divorce however mr wyatt made his fortune from wind farms, and was worth a cool £110 million by the time of the hearing. he now lives in a georgian hill fort near stroud with his new wife and 5 year old son and owns a conference league football club, having been awarded an OBE!
unfortunately for him, ms wyatt became aware of his new found wealth. she on the other hand was reported to have remained penniless and to be in poor health, raising her 3 children of other relationships on part time work and state benefits. she had also raised the child she had with mr wyatt until he went to live with his father at age 18, which you would think might justify some kind of claim. just to complicate matters further, neither party had retained any of the papers from the original divorce apart from the final divorce decree, the court file had been lost and the solicitors’ files had long since been destroyed. this could have been important – see the techie bit below if you want more.
she finally made a claim for financial orders within the original divorce proceedings in 2011, seeking a lump sum in the region of £2 million (on my maths that would leave mr wyatt with £108 million – why on earth not just pay up?). the first judge to deal with the matter made some temporary orders in favour of the wife, and the husband appealed against them. the court of appeal agreed with him and struck out the wife’s application completely, meaning that she could no longer proceed with her claim. she in turn appealed against this decision to the supreme court.
the headline result is that the supreme court overruled the court of appeal and gave permission to ms wyatt to continue with her claim for financial orders. however it is important to understand amidst the sensationalist reporting that the supreme court did not actually award any money to the wife; it merely gave her permission to continue with her claim, with the amount to be decided by a high court judge at a future hearing. indeed the supreme court commented that the wife faced formidable obstacles to success. nonetheless, the decision confirmed that there in no time limit for making a financial claim against a spouse after divorce and that a claim can be pursued many years later, even when circumstances have changed in the most dramatic and unimaginable way.
THE MORAL OF THE STORY
at present it is quite easy to get divorced without sorting out any of the financial issues resulting from the separation. this is set to get even simpler, due to recent proposals to “de-couple” divorce from finances yet further. many people get divorced without realising the importance of dealing formally with any financial issues and obtaining a proper court order, by agreement or otherwise. quite often of course the financial issues on divorce can be complicated and obviously need to be resolved formally with a court order. however, even if there is nothing to divide at the time of the divorce, or everything has already been split leaving nothing else to do, it is still very important to obtain a financial clean break order dismissing all potential claims by both parties once for and all. without this there is no certainty or closure, as graphically illustrated by wyatt and vince. for more information and a perfect cost-effective online solution to this problem visit http://www.justdivorce.co.uk/financial-clean-break.
THE TECHIE BIT.
unlike most civil claims, there is no time limit within which an application for financial orders on divorce or civil dissolution must be filed with the court. it is possible for the other spouse to apply under rule 4.4 of the family procedure rules 2010 to strike out such a financial claim, but only on certain limited grounds. this was the application made unsuccessfully by the husband in wyatt and vince. hence the wife did not actually receive a financial award as a result of the supreme court decision – she was simply given permission to continue with her claim.
importantly however, if a divorced person remarries before making a claim for financial orders then he or she loses the right to make any claim at all in relation to the earlier marriage (apart from a pension sharing order). this is a trap for the unwary that regularly causes problems, and it is very important for divorcing couples and their legal advisors to be aware of this rule. the problem can be avoided entirely by including a full claim for financial orders in the divorce petition at the outset, and this issue is flagged up for all clients of justdivorce.co.uk. in wyatt and vince it was not possible to check whether or not the wife’s divorce petition had included a financial claim as all the papers had been lost, but the court was generously willing to conclude that she must have done so. in fact ms wyatt had not subsequently remarried, so she was safe in any event.
the government has recently confirmed it’s previously stated intention to establish a limited number of “divorce centres”, which will be “points of entry” for issuing all divorce petitions and financial applications. 6 centres have been identified so far, with London and south east applications to be issued in bury st Edmunds as from October 2015. wales is a centre on its own, and the others are north east, north west, midlands and south west, with differing start dates.
the belief is that the issue of divorce petitions and financial applications can become more streamlined and cost effective if done in bulk. that may well be right, provided that the divorce centres are resourced properly. hopefully this development will include the provision of decent IT facilities, which is crucial for the court service generally moving forward. will we shortly see the day when paperless divorce proceedings are routinely issued? hope so.
the actual process of divorce is gradually becoming less legal and more procedural in nature. one reason for this may be a tacit acceptance by the courts that if a marriage is over it is over, regardless of what the law says about the available grounds for divorce. this may have resulted in no fault divorce becoming a reality in practice on the ground, despite the continuing reluctance of parliament to deal with such a political hot potato. that in turn makes online divorce for a fixed price more attractive in appropriate circumstances, such as where the parties are in agreement and there are no unusual complications.
an example of the trend towards the commoditisation of divorce is that “legal advisers” who are not judges are now able to deal with applications for decree nisi, an important but fairly routine step in the divorce process. most of these applications are simple in nature and so this does seem to be a sensible use of the court’s resources. however, a judge recently exposed a large number of linked bogus divorce petitions which he described as being on “an industrial scale” and one wonders if the involvement of lesser qualified staff will make it more difficult to uncover malpractice of this nature.
if a separate court hearing does need to take place, for example relating to children of the family or finances, then this will happen at a family court geographically most convenient for the parties, and not necessarily at the original designated divorce centre – again a sensible measure. this is not relevant to cases handled by justdivorce.co.uk however, which should rarely if ever require the parties to attend at court.
it used to be that people could issue a divorce petition in any county court in England or Wales, regardless of where they lived, as a result of which one online divorce provider at least was in the habit of bulk issuing petitions in its local court. now, however, petitions should be issued in the relevant catchment area, unless a reason can be given for issuing somewhere else. again, this development does not affect justdivorce.co.uk, which has always covered all the courts in which petitions can be issued.
one senses that further changes are on the way. what an exciting slash challenging time to be a family lawyer!
his honour judge dodds was recently ticked off by 3 court of appeal judges for the way he handled a family law case involving an application by a 13 year old girl regarding the identity of her father – a situation requiring a degree of sensitivity one would have thought. apparently the learned judge commented that the lunatics had taken over the asylum when examining the merits of the girl’s application, and complained about the time he had to spend reading the background documentation over his weekend. he went on to describe the papers as codswallop, perhaps a phrase unfamiliar to a 13 year old. the court of appeal disagreed, commenting that the judge displayed a closed mind to the application. they also stated that appointment as a judge is not a justification for being gratuitously rude to people appearing in court. ouch. I must explain to my 15 year old daughter that the same principle applies to teenagers and their parents.
well we all have bad days, I suppose, but hopefully a sincere apology will be forthcoming. in previous times I do recall appearing occasionally before some very rude judges, including one district judge in particular who was so awful that I suspected he was under the influence of alcohol. even these days it still seems possible to appear before a judge who has taken unreasonably against you or your client, and who gives you a much harder time than your opposing advocate. maybe just all part of the general cut and thrust of litigation. overall however I can say that most judges in the family division are courteous and polite to the advocates and reasonably understanding of the concerns of their clients, and rightly so – the parties are what the whole process is about after all, not the lawyers or the judges or their court staff. we should all remember that.
the moral of the story however is why on earth risk being labelled a lunatic by a judge in the first place? by using the friendly online undefended divorce service expertly delivered by justdivorce.co.uk you won’t have to come anywhere near a court building or a crabby judge. the only risk is colliding with me after a run in with my (darling) daughter.
everyone at justdivorce.co.uk wishes everyone else a happy, successful, peaceful and prosperous new year.
these are rapidly changing times for family lawyers. they say change is usually good, in a challenging and uncomfortable kind of way, although I find this claim is usually not made by the poor unfortunates who are actually going through it. hot on the heels of the far reaching reforms introduced in april this year, the president of the family division is aleady pushing ahead with other planned changes to the family justice system. most of these seem likely to simplify even further the online divorce services offered by justdivorce.co.uk. it used to be a corner stone of the family legal system that a divorce petition could be issued in any county court in england or wales, regardless of where the parties lived. most people chose to issue in the closest court in case they had to attend at a hearing, whilst others preferred the added anonymity of proceeding in a court far from home.
in april this year the county court lost it’s power to deal with divorce cases completely, coinciding with the birth of the new family court network, in which all divorce petitions now have to be issued. at the same time a practise was created whereby the family court in which to issue proceedings is identified by reference to the postcode of the petitioner (the one issuing the petition). it seems that at present a petition can still be issued in any family court around the country, but certainly the push is towards parties using a designated court.
apparently, an even more streamlined process is in the pipeline. the president of the family division has made clear his intention that the number of courts in which petitions can be issued will be reduced drastically over the next 12 months or so, perhaps to less than 20 countrywide. there will be a designated family centre in each administrative area, plus specified family hearing centres. ultimately, the objective may be for all divorce proceedings to be issued in one national centre, presumably for reasons of efficiency and cost cutting, which isn’t such a bad idea. it seems that all simple cases will be handled in that court, and that if an issue arises (such as a complication with the divorce itself, or a dispute over the children or money), then the case will be farmed out to the most convenient court for a hearing to take place. sounds sensible, provided that the court file is not lost in transit and that the central court can cope with the volume of work. like a lot of these worthwhile projects however, it’s success will depend partly on the amount of hard cash put up by the treasury to fund the necessary software programme, manpower etc.
justdivorce.co.uk has adapted to these variations as they have happened and will continue to do so, although admittedly it has been a challenge this year given how little notice of the changes was granted to the legal profession. anything that simplifies the process of divorce also simplifies the process of providing online divorce services. this gives more choices to people going through divorce as to how and where they can obtain legal advice for what can be either a simple or a complicated process. legal horses for legal courses.
government ministers are constantly looking at ways of keeping people out of the courts, especially divorcing couples, with the motivation as ever that this will save money for the taxpayer and/or increase their popularity. it must be sensible to explore the possibility of resolving disputes outside the courtroom, particularly family cases, which do seem ill-suited to an adversarial process especially where children are involved.
the most popular alternative to litigation for Whitehall mandarins seems to be mediation, whereby a jointly appointed mediator (who may or may not be a lawyer) tries to help the parties to reach their own solution to their problems, instead of imposing a decision on them which they may or may not like as a judge would do. there is much to be said for this process if there is a level playing field, as the parties are much more likely to be happy with and abide by a solution they have achieved themselves. of course there is inevitably a cost to mediation – the mediator has to be paid by the parties, and they might need external legal advice during the process – plus it can create additional costs and delay if mediation is tried and fails. nonetheless, the process has clear strengths and potential advantages for many couples.
however, the bottom line is that you can’t force people to mediate if they don’t want to. some cases just need to be resolved by a judge due to their very nature, and some spouses are determined to have their day in court and cause as much cost and inconvenience as possible for their former spouse as part of the healing process. government has been slow to realise this however, and there seems to be a suspicion that lawyers deliberately fail to inform clients about mediation to keep their tills ringing with court work – cue populist sound bites about fat cat lawyers. no doubt there are some solicitors who think like this, but I am sure that most family lawyers genuinely want the best outcome for their clients, particularly members of resolution (www.resolution.org.uk). in fact, the recent and very probably ill-judged removal of legal aid from most family law cases has resulted in a sharp decline in the number of referrals to meetings for people to find about how mediation works before embarking on court proceedings (known as mediation information and assessment meetings, or MIAMs). this seems to suggest that lawyers were in fact more willing to refer clients to MIAMs than politicians believed.
another move in this direction is that from april this year, anyone who wishes to apply for financial orders in divorce proceedings must first attend at a MIAM before being allowed to issue an application (known as a form A or B for any law students in the room – a gold star for anyone who can tell me the difference). this MIAM requirement can only be avoided in certain fairly extreme circumstances, such as the presence of proven domestic violence, or unreasonable hardship. sounds ok at first sight, although by the law of unintended consequences this has resulted in form A and B becoming much longer and complex, and much harder for non lawyers to understand. furthermore, i have already had one case where the other side were unwilling to contemplate mediation, so they simply skipped around the MIAM requirement at issue stage by falsely claiming unreasonable hardship in the form A. this misconduct should in theory be picked up by the judge at the first hearing (given that my client was paying many thousands of pounds per month in voluntary maintenance at the time!), but it remains to be seen what appetite the judges will have for upholding the new rules.
a better answer may be to educate people more effectively about the potential benefits of alternatives to going to court, rather than forcing them to take part in a process which by its nature needs to be embarked upon voluntarily. longer term, it may be sensible to try to completely change the culture of the divorce process by removing divorcing couples from the adversarial court arena all together. the creation of the single family court in april this year, which now deals with almost all family cases, is a tremendous step in the right direction, and one which may eventually put me out of a job if I am around for long enough.
in the meantime, I like to see www.justdivorce.co.uk as another form of alternative dispute resolution in itself, since it is very cost-effective, it depends on the cooperation of the parties and it keeps them completely out of court except on paper. I wonder if I could persuade the MOJ to make a JD-IAM compulsory?