Divorce, financial needs and legal aid: The last week in family law

Enabling people to apply for a divorce online could eliminate up to 13,000 hours of time spent by court staff checking divorce petitions, according to a senior civil servant who was responsible for several family justice reforms. Adam Lennon, head of family modernisation and improvement at HM Courts & Tribunals Service, told a Westminster Legal Policy Forum that when he worked in the courts service issuing divorce petitions he returned an estimated four out of every 10 petitions to the applicant due to an error. He said that in many cases “applicants and their legal representatives were not able to accurately copy word-for-word the place of marriage from the marriage certificate”. By contrast, he said that when a digital divorce service was introduced only 7% of applications were being rejected, and the figure now stands at just 0.4%.

The Nuffield Foundation has published new research exploring why defended divorce occurs, and examining how cases are dealt with by the courts. The research found that the great majority of defences arise from quarrels about who is ‘at fault’. However, the researchers said that in practice this was not something that could be determined by the courts, and that most cases are settled, rather than decided by a judge. Further, the research found that the financial and emotional costs, and discouragement from the family justice system, mean that defending a divorce is not an accessible option for most people. The report concluded that the law is generating disputes and then failing to remedy them, and the researchers called for reform of the divorce law to remove the concept of fault entirely. One of the authors of the report, Professor Liz Trinder, said: “The divorce law is now nearly 50 years old and reform is long overdue. Our interviewees told us how difficult marriage breakdown is, yet the law makes the legal divorce even more difficult than it needs to be. Having to blame one person to get a divorce does not help and in most cases is unfair. And the court is not able to investigate why a marriage has broken down and recognises anyway that it is a fool’s errand. The problem is that there is now a big gap between what the law is in theory and how it works in practice. That is not good for families or for the law.”

The Family Justice Council has published the 2nd edition of its Guidance on Financial Needs on Divorce. As the President of the Family Division Sir James Munby explains in a foreword to the Guide: “since the publication of the first edition in June 2016, [the Guide] has established itself as an invaluable tool for the judiciary in relation to the making of orders to meet financial needs following divorce and the dissolution of civil partnerships. This Guide focuses on those cases where the available assets do not exceed the parties’ needs and provides a succinct summary of the law as explained and developed in the leading cases. It also includes a number of helpful case studies of common scenarios”.

A High Court judge has ruled that adults who enjoy diplomatic immunity could still have their children taken into care. Mrs Justice Knowles ruled that the children of a former employee of an unspecified high commission could have been made subject to care orders after being physically abused by their mother. In the event Mrs Justice Knowles concluded that the mother, who no longer worked for the high commission, and her children had lost their diplomatic privileges. However, she stressed that the status change had no bearing on her assessment that it was within her jurisdiction to make final care orders.

And finally, a judge has criticised the lack of legal aid funding for a woman alleging rape and sexual assault against her ex-husband, suggesting it may have resulted in a miscarriage of justice. The case concerned the issue of what contact the woman’s 10-year-old daughter should have with the father. Both parties in the case were unrepresented, leaving the court to prepare makeshift bundles, each of the parties to prepare their own questions for cross-examination, and an alleged victim of domestic abuse with no moral and practical support in court. After some time in the witness box the woman stopped giving evidence, saying she could not continue. The judge expressed surprise that the woman, who is dependent on state benefits, had failed the means test and was not eligible for legal aid. He said that “the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents”, and that there was a very strong likelihood that the outcome of the hearing “would have been different, and most probably a truer reflection of what really happened, had the parents been represented.”