02 December 2021 - Article
The online divorce service was rolled out by HMCTS on 1 May 2018 following a successful pilot in 2017. Similar to the HMRC online tax portal, the service allows members of the public to apply for a divorce online without legal representation by completing the process via a smart input form, including processing payment and uploading the relevant supporting evidence.
Using non-technical language and offering prompts and guidance to assist completion, the online service has proved to be a huge success. It is efficient, paperless, user friendly and improves access to justice. The service has also reduced the potential scope for error; the form will be rejected unless it has been completed correctly. The Ministry of Justice claims that the service has contributed to a 95% drop in the number of applications being returned due to mistakes when compared with paper forms.
Whilst being efficiently robotic at the start, there is still the necessary judicial involvement before matters become finalised, with judges presiding over the pronouncement of decree nisi and decree absolute.
The online service has ostensibly enabled members of the public to make an application for a divorce without the need for legal representation or the associated legal fees. However, the use of the online service without legal advice is not free of risk and parties should carefully consider obtaining legal advice before embarking upon the process. For example, the question of whether the court has jurisdiction in relation to the divorce can be complex; making decisions without legal advice carries the potential risk of a contested jurisdiction battle and/or complications later.
It is also important to consider the emotional implications in relation to divorce. Until the Divorce Dissolution and Separation Bill becomes law, in most cases initiating divorce proceedings involves apportioning blame, often detailing the other party’s unreasonable behaviour. Careful consideration is therefore essential in order to set the right tone for your divorce proceedings. Family lawyers will usually advise clients (unless there are particular reasons for urgency) to take their time and to think carefully about whether it is the right decision and also what is the best way to go about it (what facts to include, how to serve it, whether to write to their partner first etc). A knee-jerk reaction is unlikely to start the process in the best possible way.
There are some limitations to the online service at present; for example if the proceedings become defended (extremely rare but possible) the Answer (defence) must be filed by post, but no doubt that will change as the Court look to move more matters online.
It is also important that those seeking a divorce understand the financial implications, and their potential claims. With an online process there is a risk that a party without legal advice will fail to understand the consequences of not pursuing a financial application at the time of, or shortly after, filing the Petition.
The online divorce service still has a long way to go. At present, the only stages of the divorce process available as part of the online platform are the issuing of the Petition and responding to the Petition by filing an ‘Acknowledgment of Service’. There are plans to make available, for both members of the public and legal professionals, the issuing of applications for decree nisi and decree absolute. There are also plans to allow access to the file online for judges and court staff, rather than requesting the paper version, so that they will be able to see, on one screen, all the information relevant to a particular case. However, this may not happen until 2023.
The practice and procedure of family law is ever-changing and developing. The online divorce service is only one aspect of the wider plan to transform and modernise the court system. Other plans include: (i) establishing the Financial Remedies Court; (ii) phasing out the 11 regional divorce centres and replacing them with an entirely online system based in the new national Civil and Family Service Centre; (iii) conducting without notice applications via video link and telephone hearings; (iv) and the digitisation of all the work of the Family Court.
The online platform has demonstrated how the introduction of modern technology is part of a wider solution to an over- burdened court system, but it is important that people take time to reflect, and take advice before taking advantage of this service.