Digital Revolution now extends to Family Proceedings
Digital working has arrived
Over the last few years there have been severe reductions in the numbers of staff at courts, operating behind the scenes. One of the functions of court staff is to create the documentation needed in the issue of legal proceedings and to follow through and record the process to a final court order when everything is completed. So as to try to improve efficiency, a programme of digitising the processes has been implemented and this will gradually extend to all family and civil proceedings. This process has now reached proceedings in the Family Court: from a modest beginning, the system will be extended to cover most areas of legal processes.
Divorce applications (formerly petitions)
One of the first areas to be affected by the new process is the issue of divorce applications (previously called “petitions”). It needs to be emphasised that the grounds on which it is possible to obtain a divorce have not changed but the procedure to do so has.
It is now compulsory for all divorce applications to be issued on-line. There is a standard form for such applications which can be downloaded from the website of the Court Service. That form has to be completed with all the relevant information for the case being started.
Much of the information is what is required by the law so that, for example, the court can be satisfied that it has the jurisdiction (i.e. power) to deal with the case. This is likely to be important if one (or even both) of the parties lives abroad.
Traps for the unwary
Whilst the new system will not create any particular difficulties for solicitors who are aware of the legal requirements, parties who decide to try to represent themselves without a lawyer may very well find that there are potential problems.
The following are merely some of the “traps” that must be avoided:
The date and place of marriage must follow the precise form of words used on the marriage certificate. A scanned copy of the marriage certificate must accompany the divorce application.
Details must be included of all “children of the family”. This does not only include the children of the parties to the divorce but to any children of either of them from previous relationships who have been treated as though they were the children of the parties who are now divorcing
All divorces are now based on the breakdown of the marriage. That breakdown is established by stating in the divorce application which of the five “facts” is relied on. No other grounds can be raised. Brief details of those facts must be given with precise dates where required.
If the “fact” relied upon is the alleged adultery of the party receiving the application, then a decision will have to be made by the person issuing the application whether or not to name the person with whom the alleged adultery is said to have occurred. This is an important matter because if the third party is named that he/she will have to be served with a copy of the divorce application. Whilst it is understandable that the person issuing the application may well feel aggrieved and that the third party should be named, that is not necessarily the most sensible or practical course to adopt, not least because it might extend the proceedings and make them more expensive.
The temptation will be to answer “no” on the divorce application to the question about the likelihood of further applications e.g. relating to finance. The reality is that the party issuing the application may need to ask the court to approve a financial settlement, even one agreed between the parties. The reason for that step is that, in practice, parties to divorce proceedings can only be certain that they will not receive unexpected applications relating to finance, possibly many years later, if the court has formally approved an agreement. To get that approval, one of the parties had to issue an application to the court and the person who raises the divorce application cannot do so (at least without the permission of the court) unless the question has been answered “yes”.
In many ways the arrival of the digital age in the implementation of divorce proceedings is a positive step forward. As will be apparent, however, there are dangers that a wrong step could lead at the very least to delays and possible extra expense, but possibly also to the forfeiture of some important legal rights.
One of the concerns of advice groups is that there will be people who are not familiar with computerised systems. For example, in family law, it is increasingly common for those in their later years to be divorced. Such people often do not have computer skills or even equipment. If they cannot obtain help from friends or relatives, they will have no alternative but to take legal advice.
Our recommendation is that legal advice should be taken if divorce is contemplated. This will make it less likely that critical errors are not made in completing the process.