19 Nov 2021
Peterborough office
48 Broadway, Peterborough Cambridgeshire, PE1 1YW
01733 346 333 01733 562 338 enquiries@hegarty.co.ukStamford office
10 Ironmonger Street, Stamford Lincolnshire, PE9 1PL
01780 752 066 01780 762 774 enquiries@hegarty.co.ukOakham office
66 South Street, Oakham Rutland, LE15 6BQ
01572 757 565 01572 720 555 enquiries@hegarty.co.ukMarket Deeping office
27a Market Place, Market Deeping, PE6 8EA
01778 230 120 01778 230 129 enquiries@hegarty.co.uk19 Nov 2021
Throughout the covid-19 pandemic we have seen technology accelerate the delivery of many services, and legal services are not an exception. Even prior to the pandemic, the legal system has been facing pressure to improve the way services are delivered and increase the efficiency and use of technology. In 2018 HM Courts and Tribunals Service (HMCTS) launched a trial online portal for family legal services. From 4 October 2021 the use of the online divorce portal became mandatory.
The online portal allows for applicants or their legal representatives to make an application for a divorce online and progress through to Decree Absolute. The online divorce system, run by HM Courts & Tribunals Service (HMCTS) aims to streamline the divorce process, enabling quicker responses from court. The online system also means fewer issues for couples going through divorce with HMCTS reporting that staff are returning fewer than 1% of online applications, compared with around 20% of paper applications, for legal representatives to amend. The advantages of the online system are that it is quicker to issue a Divorce Application through the online divorce portal than it is by issuing a paper application to each solicitors’ Regional Divorce Unit. HMCTS have said the online system helps to finalise divorces in an average of 20 weeks compared with around 60 weeks for paper applications. Legal professionals can also view divorce applications in a single dashboard, avoiding the need to phone HMCTS for an update, they can simply log into their account and update the client accordingly.
It is important to consider at the outset whether you wish to instruct a solicitor to deal with your Divorce or whether you wish to issue this yourself, as once you have started your divorce online, if you then wish to instruct one of our lawyers to represent you after the Divorce has been issued, your case will come off the digital platform and will then proceed on a paper basis, which is a much slower process than using the Online Divorce Portal. Alternatively, you could continue to represent yourself with the assistance of one of our lawyers who would give you advice when you need it, under our Support and Advice Package (further information below). However, should you decide to issue Divorce Proceedings yourself, then you would firstly need to sign in or create an account on the gov.uk website. You will be asked to complete a multiple-choice form and will need to provide your husband or wife’s full name and address, your original marriage certificate or a certified copy, proof of your name change if you changed it since you got married. The Court will then post the Divorce Petition to your spouse with instructions as to what they need to do next.
Usually, the person who applies for the divorce by submitting the Divorce Petition (the ‘Petitioner’) will be liable for paying the Court costs. The Court fee is £593 (as from 30 September 2021). However, in some circumstances you may be able to ask the Court to award a Costs Order, meaning the Court can order your spouse to reimburse all or part of the legal fees. The Petitioner can ask for costs during the online divorce process, and this is something that our lawyers would recommend that you do. There is also provision in the Divorce Petition for a financial order.
Your spouse will have 7 days to acknowledge receipt, using the Acknowledgement of Service Form, confirming their acceptance of the Petition or their intention to defend the proceedings. They have 7 or 14 days depending on which route they take. If your spouse (the ‘Respondent’) agrees to the divorce, you can then proceed with the Divorce and the Court will prompt you through the Online Portal for the next stages. If the Respondent ignores the Divorce, you will need to apply to the Court for Bailiff Service to intervene, to ensure the divorce can move on to the next stage. If the Respondent completes an ‘answer to divorce’ form to say they disagree with the divorce, you may have to go to court to discuss the case.
If you do decide to apply online for a divorce yourself, it helps to have an experienced family lawyer on hand to help you decide on the approach to take, to ensure forms are filled in correctly and to answer any technical queries you may have. Should you wish one of our lawyers to assist you with the Divorce proceedings or Financial Proceedings once you have issued them, then one of our lawyers can talk you through the online portal process under our Support and Advice Service. This means that rather than instructing a lawyer to act on your behalf, you act “in person”. You would prepare the paperwork and deal with the administration yourself, but you will have the support of one of our lawyers to give advice when you need it. Our lawyers can give you clear, impartial advice on the best course of action to take. They can help you plan your strategy and explain any technical points. Our lawyers can also draft letters and other documents on your behalf and make sure that the forms have been filled in correctly which will prevent problems arising in the future.
If you have started the Divorce online yourself and then require representation for financial proceedings, our lawyers can assist you with this as the Divorce will run in the background alongside the financial proceedings and our lawyers will be able to file the application using the Online Portal. On your behalf, your lawyer can apply for a Consent Order once you have the Decree Nisi. It may be approved before the Decree Absolute is obtained however it will not be binding until it has been approved by the Court and the Decree Absolute has been obtained. Again, should you have issued financial proceedings yourself but then wish for representation, the case would come off the digital platform and will proceed on a paper basis.
The Government has concluded a consultation on the reform of the legal requirements for divorce, to remove the requirement to evidence facts based on conduct or separation. On 6 April 2022, the first major change to Divorce Law for over 49 years will come into effect – the ‘no-fault’ divorce. There will be new procedures, new forms, and new timescales. The Divorce, Dissolution and Separation Act 2020 replaces the requirement to provide evidence of conduct or separation facts with a new requirement to provide a statement of irretrievable breakdown. Therefore, the five facts of Adultery, Unreasonable Behaviour, Desertion, 2 years Separation (with consent) and 5 years Separation (without consent) will be removed. There will be only one ‘ground’ with the provision of a statement of irretrievable breakdown of the marriage. The parties will be able to make a joint statement whereby both will be able to apply for the marriage to come to an end on the ground that the marriage has broken down irretrievably (Section 3). This application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably (subsection 1). The Court dealing with an application must take the statement to be conclusive evidence that the marriage has broken irretrievably and make a divorce order (sub-section 1). It will not be possible to contest the decision to divorce. There will be a minimum of 20 weeks from the start of proceedings to obtaining a Conditional Order (Decree Nisi). The 12 months wait to comment divorce proceedings will remain, as will the 6 weeks between Conditional Order (Decree Nisi) and Final Order (Decree Absolute).
