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The days of the exclusively paper-based lawyer could be numbered: the HMCTS online divorce pilot

Date:31 JUL 2018
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The International Family Law Group LLP (iFLG) is excited to be one of just four law firms selected to beta test the Court Services’ online divorce pilot from 31 July 2018. Though initially only the divorce petition itself, in coming months it will be the entire process from the petition through until decree absolute online via the court service portal.

The pilot will be rolled out to a further 16 firms in coming weeks before launching to the profession in the autumn. It has been available for all litigants in person since 1 May 2018 but has been held back for the legal profession for final testing.

This is an exciting new development as the Family Courts move steadily towards a digitised service. Online issuing has been commonplace in the civil courts for several years. This launch of the online divorce pilot by Her Majesty’s Courts and Tribunals Service (HMCTS) is a significant step for the Family Court. 
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Electronic filing already occurs in family court proceedings. Online issuing (of the initiating application) is the natural next step toward a digital Family Court. Sir James Munby, the former President of the Family Division, has lauded the use of technology and specifically online divorce throughout his tenure and those innovations are now coming toward fruition. 

Soon online issuing will be the norm not only for divorces but for all applications across the Family Court, including financial applications and applications relating to children. Pilot projects on each are already underway.

iFLG are extremely pleased to be at the forefront of such developments in the use of technology in family law. We have each met many times with HMCTS throughout the research and development phases of the online divorce project and have given feedback on what is required from the online system, bringing our expertise, procedural knowledge and our experience in the domestic and international sphere to HMCTS’ developers. David Hodson has previously spoken to the World Congress on Family Law in Dublin and, last month, to the LawAsia Family Law conference in Laos on this topic. We have taken what we have learned about digital family law developments around the world and have been able to feedback to the HMCTS developers. As a practice we have always been at the forefront of innovative digital solutions in family law. We eagerly look forward to the progress of Artificial Intelligence (AI) which we believe will significantly help in bringing about more family law settlements with more certainty, confidence, less costs and more quickly.

The beta system will allow us to issue divorces online from 31 July 2018. The normal pro-forma details required by the standard divorce petition and Family Procedure Rules (FPR) will be completed using the HMCTS online portal. Tick boxes and free-text fields replace the offline equivalents. The details can be shared with clients and once approved the divorce petition is submitted online. Marriage certificates can be 'posted' as PDFs and there are options for payment to follow by cheque or directly by the existing PBA Account system. 

Each user in a law firm has a separate online identity with the court service, although different users in a law firm can work on the same petition at different times. We have been predicting for some time that greater digital use in family law will mean different requirements and skills for lawyers. This online divorce is the most obvious manifestation so far of these changes. Different lawyers with different skills will now be part of the personnel in law firms. The days of the exclusively paper-based lawyer are now numbered. Many clients, national and international, will welcome the opportunity to work with a far more familiar digital medium; the reality is that many clients are already doing this with most aspects of their lives. 

Process and petition changes 

Once the petition is submitted, the court will send an acknowledgement as notification and will in due course issue the petition. A paper version of the petition will then be generated for the petitioner and for service on the respondent who can then respond online. The current beta version does not yet allow for Decrees Nisi or Absolute to be applied for online, but this is in the pipeline for development and hopefully launching later in the autumn.

HMCTS will give to each firm their own online portal access to allow them to check the status of all online divorces currently being handled by the firm. We believe this will be an invaluable management tool for law firms to see progress of divorce petitions being conducted by lawyers in the practice. 

The homepage has a quick-look guide to each suit and its status. 

The proceedings will be issued out of the East Midlands divorce centre, just as electronic civil claims are issued out of the Northampton County Court. Our understanding is that East Midlands will divert cases to other divorce centres based on volume of work. This is perfectly sensible and is the inevitable and beneficial step towards the centralisation of family court administration. It is also to be hoped it will overcome some of the scandalous delays at the Bury St Edmunds divorce centre where recent statistics have shown it takes 51 weeks from the issuing of a petition to the pronouncement of the final decree of divorce. HMCTS are taking action to address these concerns. 

The question and answer format builds on changes in the style of the divorce petition made in August 2017. It will therefore be less of a surprise to practitioners than a year ago when the new style was clearly anticipatory of the online divorce.

It is expected that there will be far fewer divorces returned for technical errors. The court service had a couple of years ago indicated that as many as 40% were being returned for this reason. They expect less than 1% to be returned because the primary errors should be eradicated by the questionnaire format and the defaults within the petition which will simply not allow some past errors.

Many procedural errors relate to the wording of the marriage certificate which must be reflected, exact word by word, in the divorce petition. The new online format should overcome many of these difficulties.

Although boxes are expandable, there is a commendably small box for the particulars of unreasonable behaviour and it is to be hoped this will discourage too many unnecessary details being given. 

The certificate of reconciliation is now contained within the petition itself.

The statement in support of the petition, accompanying the application for the first decree nisi, will now be much shorter and easier to complete online as several of its questions are now incorporated in the petition itself.

We have been critical of the jurisdiction wording in the beta version and we anticipate this will change over this fortnight. We acknowledge that in the vast majority of cases, it’s irrelevant and there is reliance on simple joint habitual residence. But there are very many international families in England and Wales. It cannot be made too simplistic, despite the general commendable attempt to simplify the language used. As we pointed out in our article about the August 2017 changes, by not including the technical wording of the jurisdiction provisions and instead adopting a simplified version, it has presumed the Marinos interpretation which may not be good law and is certainly different to the approach adopted in most EU countries. 

One of the major complaints over several decades about the form of the divorce petition were the extensive prayers for financial claims. This was very often misunderstood by respondents receiving the petition in circumstances where no claims were anticipated, but they were included with a view to subsequent dismissal. We are delighted this is almost entirely removed by a fairly innocuous tick box. We still believe these are historic acronyms and should be removed altogether.

Initially there are still issues to iron out. As international practitioners we are keen to explore whether or not the court sending an online acknowledgement is sufficient to seize jurisdiction with the much disliked race to court, lis pendens, in mind (which we still have until March 2019 when we leave the EU, or perhaps at most during the transition period). 

Another issue is around whether a petition is lodged when it is filed online real-time, or is it a notional time when the court next formally opens for business or is it when the petition is opened by the court service? We have had this debate for several years (and we hoped the Court of Justice of the European Union would give us some guidance in a case we took there a couple of years ago but sadly they would not help practitioners). The debate will now be intensified with lawyers able to file online out of hours. 

Similarly, it remains to be seen whether online issuing will take place without any form of marriage certificate being submitted as often arises in cases of real urgency. We have recommended that arrangements should be made for the petition to be issued even if there is no immediately available marriage certificate in order to overcome any delay in an international case. 

But this is part of the process of beta testing and iFLG will be working closely with HMCTS over the next weeks on these issues.

This launch is an important step forward for the family law profession and we are pleased on behalf of the profession to be leading the charge to digitalisation. We are however always mindful that digitisation of the family courts will create a new class of digitally disadvantaged. Progress must ensure simultaneous opportunities for appropriate access to justice for those unable, for many reasons, to adequately access these changes.