MyHMCTS makes divorce financial remedies much easier

For years, financial remedies legal processing has involved long, drawn-out processes that tied up the legal system and caused heartache for couples who simply wanted their relationships to come to a fair conclusion. However, as reported in the Law Gazette this month, that’s all changed. Family law solicitors up and down the country have welcomed the introduction of HM Courts & Tribunals mandatory digital portal, which is already slashing the time it takes to process financial issues in a divorce from three months to as little as seven days.

Previously, contested financial remedy cases were taking an average of 77 days to reach their conclusion. However, creating the digital portal has sliced through the paperwork and made it faster and easier for family law solicitors and their clients to get the result they want, even if a case is referred to a judge more than once.

Now, rather than filling in the notoriously complicated D8 form, divorce applications go through the MyHMCTS online portal. The exceptions to this changeover are civil partnership dissolutions, judicial separation and nullity.

Hailed as a success by family law solicitors

Since the portal became an option in 2018, more than 150,000 divorce applications have been processed. The system has been deemed to be such a success that as of 4th October, paper applications will come to an end and everything will be done digitally. The system, which was introduced as part of the government’s courts reform programme, has been hailed as a success by family law solicitors across the country.

The digital system has also cut down dramatically on the number of returns, with only 1% of online applications requiring amends, compared to around 20% of paper submissions. Overall, HMCTS has enabled the courts to finalise divorces in around 20 weeks on average, compared to the previous 60 weeks for paper applications. This makes a huge difference to couples who simply want to get on with their lives and don’t want to be stuck in the limbo of divorce for over a year.

A couple of stumbles along the way

For a government-backed digital system, the problems have reasonably manageable. The system hasn’t been all plain sailing, and there have been a few issues along the way. The Law Gazette also reported the fact that the system cannot handle a Notice of Change if an individual decides to transfer responsibility to a legal representative after initiating the process as a petitioner litigant. In this instance, the case needs to transfer back to the old paper method, which could delay the process considerably.

Divorce solicitors are recommending that couples who may anticipate conflict when it comes to the divorce process should go through legal counsel from the outset to avoid this issue. For others, the availability of the portal means that while couples are sorting out the ‘nuts and bolts’ of the process online, divorce solicitors can focus on the financial arrangements, which are often the most complex (and apart from child access) the most important aspect of a separation.

Solicitors offering financial remedies legal advice are using the portal as a matter of routine, and apart from the issue surrounding the Notice of Change, it appears to be working remarkably well. The HMCTS portal is also being activated to take on a range of other processes as well as divorce and financial remedy including probate, immigration and asylum appeals and family law. Anticipation is that it will streamline the legal process, allowing solicitors to provide clients with a more personalised and focused service in the long run.

If you’re going through a divorce and need financial remedies legal advice, talk to one of our expert team in confidence today. We offer a full service including access to the best divorce solicitors in the region and are here to help you get the resolution you want. For more information please email or phone 020 8349 0321.

Reflections on divorce and financial remedies after lockdown

Last week we hosted a webinar with guest speaker Max Lewis of 29 Bedford Row, where we discussed financial remedies on divorce and the future for family practitioners after lockdown which Graeme summarises for readers in this update.

The financial impact of the lockdown could lead to a spike in marriage rates, as well as divorce rates. We should not read too much into a surge in divorce filing in Wuhan immediately after lockdown. This is because remote filing is not possible in Wuhan and therefore the filing that took place on the first day resulted from the 3 month wait to leave the house. It is also believed that marital preservation is an immediate response to mortal threat which relaxes once the threat is less acute. People refrain from making major life changes under conditions of extreme stress, uncertainty and threat.

The impact of the lockdown may mean that those who were planning further children to delay. Once the lockdown has ended, there will be a return to social life, and the opportunities for marital infidelity. However, because Covid-19 will be in the community after lockdown ends, there will continue to be much uncertainty.

In order to reopen new cases, there must have been new events since the order which invalidate the basis or fundamental assumption on which the order was made, the events should have occurred within a relatively short time of the order being made, mainly not more than a few months, and the application should be made promptly (Barder). The turning point for the lockdown would appear to have been 22 February, when a dozen Italian towns in Northern Italy closed schools and businesses, so the time frame remains short perhaps back to the Summer of 2019.

Differences in value can arise however through “natural process of price fluctuation” which however dramatic can still fall within this principle (Cornick). This means that “what has soared may plunge and what has plunged may soar again”(Myerson) to the extent that shares that are not liquidated may mean that losses are not crystallised.

Where a settlement provides for a clean break, the Court retains complete jurisdiction until the order is put into effect (Thwaite). If there is some significant change in circumstances since the order was made, the Court may have jurisdiction to adjust a final order (L v L). Where any such revision is made, it should reflect the underlying and original intention of the parties (US v SR)

However, the assessment of assets must be those available at trial (Cowan) and this is the usual rule unless serious injustice would be demonstrated (FZ v SZ). It is entirely predictable that company or property valuers, be they accountants or surveyors, will soon be saying soon that it is quite impossible to put any meaningful figure on the value.

Applications for variation under S31 seem very likely, particularly in relation to income orders. Where orders for sale are being varied, that is likely to relate as much to the  process of the sale rather than the distribution of the sale proceeds.

Traditionally, the approach towards variation was to look at everything de novo (Lewis v Lewis) but the modern approach means that a light touch review is used where appropriate (Morris v Morris).

Issues likely to arise in future cases include earning capacity. Some sectors are more vulnerable than others as we emerge from lockdown. There may be arguments about schools and the payment of school fees. Can schools afford to continue if parents don’t pay fees? This is likely to further encourage use of term orders. Remote mediation seems a greater possibility in the sense that the couple need not be in the same room.

The early signs are that there are downsides to remote litigation, for example, being unable to look people in the eyes. The use of remote litigation is likely to be here to stay for directions appointment. Some of the technology has been a great success including electronic bundles, which may lead to greater e-disclosure and better use of document management software.

For future information or if you have any questions please do not hesitate to contact us.