The advance towards the digital court, heralded by the progress towards on-line divorce (in which expression I include for present purposes the analogous processes in relation to civil partnership, judicial separation and nullity), demands that we now tackle an issue which has been around for some time. Why is it that what is referred to in some places as ancillary relief is still, as the name indicates, part of the divorce process? Has the time not come to bring about a complete de-linking – separation – of divorce and ‘money’, so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic YES!
A number of realities drive this conclusion:
- Only a minority of divorce cases give rise to a money claim.
- Divorce, as a process, is largely administrative and bureaucratic. Whatever the theory, judicial involvement in the process is limited (see Owens v Owens [2017] EWCA Civ 182, [2017] FLR (forthcoming)) and, unless the petition is defended, involves no face-to-face contact (whether in a courtroom or by visual electronic link) with the parties. In contrast, judicial involvement in money claims is significant, usually involving face-to-face contact, and, even if the case is eventually settled, requiring considered expert judicial approval of the final order.
- The concentration of divorce cases in a limited number of regional divorce centres, as the prelude to a completely on-line system, is putting the administration of ancillary relief under unnecessary and avoidable strains.
- Ancillary relief is only one of the various types of financial remedy that are dealt with in family courts; others (see the definition in r 2.3 of the Family Procedure Rules (FPR)) include claims under Part III of the Matrimonial and Family Proceedings Act 1984, claims under Sch 1 to the Children Act 1989, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
Surely what is called for is a system under which (1) there is, formally, legally and procedurally, a complete de-linking – separation – of divorce and money and (2) all money claims as I have described them above are dealt with in accordance with a single set of rules providing, so far as possible, for a common form of application, a common set of forms, a common process and common procedure.
The first step in this direction has been taken with the very recent implementation of the first phase of what is called ‘
Administrative De-linking of Financial Remedy Applications from Divorce Proceedings’. Although these are early days, this seems to be going well.
The next step is to move toward formal (legal) de-linking.
With one exception (see below) none of the proposed ‘money’ reforms requires primary legislation: it can all be achieved by changes to the FPR, to Practice Directions and to forms.
Reform of the substantive divorce law – for example by the introduction of ‘no-fault’ divorce – requires primary legislation. The chronology of recent events is instructive. On 13 February 2017 (see
Owens, para [51]) Lord Keen of Elie, Lords Spokesperson (Ministry of Justice), said ‘we have no current plans to change the existing law on divorce’. The appeal in
Owens was heard on 14 February 2017 and judgment was handed down on 24 March 2017. On 29 March 2017, Baroness Buscombe, speaking for the government said:
‘… the Government are considering what further reform may be needed to the family justice system so that it better meets the needs of separating couples and families and can achieve the best possible outcomes for them. Options for reviewing divorce law are part of that broader consideration. We will publish a Green Paper with our proposals on family justice in due course.’
We can only wait and see. The lamentable history of procrastination suggests it would be unwise to assume speedy progress. Obviously it would be better, if divorce law reform is now seriously on the agenda, to delay full implementation of on-line divorce until we know what shape the reformed law might take. But we cannot allow the pressing imperatives of procedural and digital reform to be delayed in anticipation of such an uncertain future. Absent clear decisions from government in the reasonably near future, we have to proceed with reform on the basis of the existing statutory regime.
Reform of divorce procedure, by contrast, including the introduction of on-line divorce, does not require primary legislation, only changes to the FPR, to Practice Directions and to forms (or their electronic equivalents). On-line divorce must be more than a simple electronic version of the existing processes. The on-line divorce project has now reached the stage where, before it can sensibly move forward much further, we need to undertake a questioning and challenging look at the existing processes and procedures to identify what amendments to the FPR, forms, etc, are appropriate.
In addition to the implementation of these wide-ranging reforms in relation to money claims, there is also a need to implement those of the specific, though nonetheless important, reforms proposed by the Financial Remedies Working Group which remain outstanding.
