The modern family?


ABBA once shot to success with a record that tugged on many people’s heart strings as they could relate to the sentiment behind ‘Knowing Me, Knowing You’ – ‘breaking up is never easy’. But now key legal figures are taking steps to make this process an awful lot easier for couples across England and Wales, with the introduction of an online divorce process.

Sir James Munby, President of the High Court’s Family Division, has recently predicted that within four years most divorce cases will leave the courtroom and be dealt with online instead. These comments come as family dynamics and structures continue to evolve and this development begs the question: could this be the hassle-free separation that people are after? Especially as couples are increasingly living internationally, with assets dotted around the globe.

Munby’s observations follow the success of the online divorce pilot scheme which was rolled out across England and Wales earlier this year (2018). The scheme is part of the government’s £1bn modernisation plan to bring the legal system into the 21st century. The online divorce programme allows couples to apply for an uncontested divorce digitally, via online forms and this includes making payment and uploading supporting evidence. The pilot scheme, which was dubbed by Munby as a ‘triumphant success’, saw 1,000 petitions issued in the trial period and a resounding 91% of people said they were satisfied with the new service.

For many couples the divorce process is already stressful and can be made more antagonistic and confrontational, not to mention expensive, by the involvement of legal teams and court rooms. The pressure has certainly been growing to revolutionise our divorce system, with the recent case of Owens v Owens, currently before the Supreme Court, being held up by campaigners as a good example of the need for reform. As many will be aware, Mrs Owen’s petition for divorce was challenged by her husband and the courts subsequently refused to grant her a divorce as the examples of unreasonable behaviour she relied upon were judged to be insufficient to warrant a finding that the marriage had irretrievably broken down. Those who have been long campaigning for no-fault divorce say this case shows just how broken the system is, and couples may feel the need to invent spurious, and extreme examples of unreasonable behaviour just to ensure a divorce is granted. Certainly not a cooperative or conciliatory approach – creating these examples of unreasonable behaviour can mean the separation becomes unacceptably bitter, and causes resentment to grow, and which often colours their approach to the resolution of financial issues. This process should be cooperative and conciliatory – especially if children are involved. The introduction of the online divorce courts is a positive sign that the legal system is moving in the right direction and is providing more support to the changing ways of family life.

One step that will significantly reduce stress is the move from a paper-based process to an online system, which will cut waste and speed up the service in a bid to provide a better fit for busy family life. It has been reported that the MoJ claims that court staff currently spend 13,000 hours dealing with complex paper divorce forms, but this online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms. As Justice Minister Lucy Frazer has said, the new system is to “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.’..

One example of how the process has been simplified for people is the way the Government has cut the legal jargon and made the language more accessible for ordinary people throughout the online process.

However, we should not count our chickens just yet, as the online process is still in its early stages and of course, may not be suitable for all couples. Some people will still prefer handing over the process and all the related paperwork – whether online or not – to a lawyer, particularly where one party may feel under pressure from their spouse.

Another issue which many have to consider is that their separation will not be straightforward, with complex webs of assets across countries and children to think about. This is a common issue that frequently arises for high-net worth individuals going through the divorce process, as more often, the couple will be based across a number of different jurisdictions and have to make decisions on where children should live/be schooled and how to divide the assets. For example, it is not uncommon for a French family to be based in London and have assets say, in Sweden, Spain and the US.

Although at its heart, the divorce process is quite simple, it can become complicated very quickly. Lots of potential issues and hurdles can be raised throughout the separation which the online process does not allow for, or enable swift resolution. For many their divorce is not simple, or uncontested, and they will need personal advice from legal experts, which would be outside the online system. It is fair to argue that a straightforward divorce would work well through this new online system, but how many cases in this day and age are that straightforward?

And although the figures show that overall, people have found the forms simple to fill in, there is still ample room for mistakes, which could end up making the supposedly simple process more complex and stressful. Having a legal expert guide you through the divorce process can mean the documents and legal details are one less thing for a busy person to worry about.

The digitalisation of courts is not unique to the Family Courts and has been tried and tested across our judiciary system, to varying degrees of success. One example is the HM Courts & Tribunals Service, which is now operating a virtual court. Claimants in the tax court can now present evidence or interact with lawyers or judges from their homes via Skype or phone. Is this creating a radical, cost-saving future? Or the death of the court room? Whilst there are strong arguments for both sides, there is no denying that 250 courts have already closed since 2010, and 6,500 court and backroom jobs look set to disappear by 2022. Balance is key to the future and the survival of the courts. The legal process needs to adapt to fit better with modern life and embrace technology more generally, but it is also true that the demand for couples to have their divorce case heard remains consistent – signifying that the London court system remains an attractive place for litigation on the global stage.

How successful are the government’s technological initiatives? Their track-record is not always successful. For example, E-conveyancing is back on the agenda following its unsuccessful trial a decade ago, which suggests this online system might not change the status quo too much, and that teething issues may arise down the line. Positively though, there have been big developments here, and maybe as family law modernises with key cases and digitalisation, it will meet the needs of the modern family.

As with everything in life, families are evolving and these days there’s no such thing as a traditional 2point4 children structure, and it is no secret that the law is struggling to keep up. High-profile cases like Owens vs Owens have emphasised how the law does not meet the needs of 21st century couples. Answers to these issues are not going to be suggested overnight, and we should certainly not dismiss digitalisation of the courts–for some going through a fairly simple, uncontested divorce, this system will work and will prove to be a much simpler and cheaper option. However, there is no doubt that legal teams will always be needed as human nature is not simple, and neither are their divorces. The good news is the law is taking steps in the right direction to keep-up with our evolving family lives.

Stephen Lyon, Arbitrator and Barrister at 4PB 

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