If lockdown has proven anything, it is that almost anything we can do in real life can be replicated online to some extent. Applying for a divorce is no exception. It has been possible to do so since May 2018, and an online system for legal professionals was rolled out earlier this year. Yesterday, the government issued a detailed guide to submitting a case using its online divorce system.
Whilst the move towards an online divorce system seems to me to be an inevitable step in the right direction, the system itself is not without its drawbacks. Having progressed divorce proceedings on paper and online, these are just some of the pitfalls I have come across with the online system:
Failing to complete the divorce petition properly
The inherent ease and speed at which it is possible to apply for a divorce online can be one of its biggest pitfalls. Many people think that the divorce petition itself is no more than a “tick box” exercise and complete it themselves online without any legal assistance, believing this to be cheaper and quicker. This can sometimes result in people making errors when completing the divorce petition that might not otherwise have been made had they instructed a specialist family law solicitor to assist them. Common errors include:
- The petitioner failing to tick the box to indicate that they would like the Court to order the respondent to pay the costs of the divorce.
- The petitioner failing to tick the boxes at the end of the divorce petition relating to financial orders.
- Divorce petitions which include needlessly inflammatory examples of the respondent’s behaviour. This is not an error as such, but it is generally advisable to keep divorce petitions as anodyne as possible.
Errors in divorce petitions are not limited to the online divorce system and they can, if spotted, be addressed, but my anecdotal experience is that there appears to be a greater tendency for people to act in haste online than compared to the paper system. Which leads me on to the next pitfall…
Timing of the divorce process
Certain rights and benefits, including those relating to pensions and, in some cases, the right to occupy the family home, may be lost on divorce. There may also be adverse tax consequences if the divorce concludes before the financial arrangements have been finalised. This is why it is generally advisable to wait until the financial aspects of a case have been resolved before applying for decree absolute (the final order in divorce).
The significance of the timing of the divorce process is not always known or appreciated by members of the public who, having commenced divorce proceedings in the first place, are understandably keen to bring their marriage to its legal conclusion as soon as possible. The online divorce system makes it much easier for people to conclude the divorce proceedings in haste and to their own or their former spouse’s financial detriment without meaning to. This can have potentially serious financial consequences for both parties.
Technical issues with the online divorce system
A significant flaw in the online divorce system available to legal professionals is that it cannot be used where the respondent is legally represented. This means that if a respondent instructs a solicitor to act for them in relation to the divorce, that solicitor will be unable to access the online divorce case or progress matters on their client’s behalf. I have heard of cases where the divorce petition has been drafted, agreed with the respondent and submitted to the Court online only for the parties to be informed by email that the proceedings cannot continue online if the respondent is represented. The divorce petition had to be withdrawn and re-submitted on paper. This waste of time and costs was surely not an intended consequence of the online divorce system. The online divorce system also limits the extent to which you can apply for the petitioner’s costs of the divorce.
The way forward
Any system that promotes a more efficient and cost effective means of progressing divorce cases is to be welcomed, especially now that we are having to rely less on traditional paper-based procedures. However, there are still improvements to be made to the online divorce system and it is not a replacement for specialist advice from a family law solicitor.
If you are considering applying for a divorce and would like to speak to a family law specialist solicitor about your options, please do not hesitate to contact us.