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The Electronic Divorce Filing Pilot: An opportunity missed or a new horizon opening up?

Stuart Clark, Associate, and David Hodson, Partner, both of The International Family Law Group LLP, describe what is known, and ask some questions, of the MoJ’s latest initiative to facilitate an online divorce system.

Stuart Clark, Associate, International Family Law GroupDavid Hodson, Partner, International Family Law Group

Stuart Clark, Associate, and David Hodson, both of The International Family Law Group LLP

In November 2015 the then Chancellor, George Osborne MP, announced in his autumn budget that £800 million would be made available for technology in the courts to bring, he said, "further and permanent long-term savings, and speed up the process of justice".  Apart from the rather crucial point that some of this funding only came from closing court buildings thereby creating real issues with access to justice, family law practitioners have been waiting to see some results.  There has been partial movement towards online filing of some court documents as well as bundles, though there are still problems given the size of the documents concerned via email.

But we understand that this spring, 2017, the Ministry of Justice hopes that more progress will be made.  Many of us who are very keen to move towards far more use of technology in family law work are following these developments with much interest.

It was announced last week that Nottingham's East Midland Divorce Centre will host a pilot scheme for online divorce filing. In an amendment to the Family Procedure Rules a new Practice Direction 36D provides a framework for the pilot.  It might be thought that providing a piece of secondary legislation, particularly where it says it is effective from 25 January i.e. immediately, there would also be news of how it would operate, the online portal and other requirements.  So far none of this seems to have appeared.  It's hard to see how a pilot scheme can run without any details and accessibility.  Sadly the impression is given that for political or internal reasons this was announced before everything was ready.  At the outset it seems that whilst this is a step in the right direction, it may be an opportunity missed.

It is a long-term ambition for the family court to become paperless, or as paperless as possible. The Central Family Court is operating a scheme to allow for the electronic filing of non-originating documents and has justifiably lofty ambitions to be entirely paperless. The advantages are self-evident and range from the practical and utilitarian: it is quicker and easier to file documents online rather having physically to attend the court.  It is far better for the environment; we calculate that several thousand trees are culled every year in the interests of family law justice! So any move toward electronic filing, and not just of ancillary documents but also originating documents, is laudable.  As practitioners we want to support the MoJ and encourage development of more use of IT.

From what can be gleaned from the new Practice Direction 36D and from what we have gathered from other sources, the basic details of the pilot scheme are as follows:

1. The scheme is being piloted at the East Midlands Divorce Centre only and will not affect the work of any other divorce centres. The hope must surely be that if the pilot scheme is successful it will be rolled out to other centres.  It may be that petitioners outside the East Midlands area could use the scheme although it seems likely that the Divorce Centre would then transfer the papers to the geographically appropriate area.  But the filing itself might be then possible.

2. The scheme will take place between 25 January and 28 July.  We have not yet seen that it has actually started and there has not appeared publicly, at least outside of the East Midlands, any more information about accessibility.  But we will of course watch with a keenness to know how the scheme will operate. The published details remain scant and at present there has been no firm indication about how the system will work. The PD is vague and in effect says that guidance will be provided as part of the online pilot scheme. So only once launched will we know how it is going to work.  We find it quite amazing that a Practice Direction, in force, should state that a pilot scheme has already started when seemingly it cannot start without more information being given.  Would it not be better, more realistic and sensible to commence the pilot scheme when it can actually start in practice?

3.  The intention is that the divorce petition will be completed online. This is very helpful and a real step in the right direction toward electronic filing. However the PD also indicates that once the petition has been completed it will then need to be printed and sent in hard copy to the court. This seems like an opportunity missed; why can the petition not be filed online? Surely this is the end-goal and a pilot scheme would perfectly test this system. But unfortunately the pilot scheme does not appear to have gone this far.  Of course we understand about the importance of ancillary documents such as the original marriage certificate being hard filed.  But although the family court rules require it to be filed at the same time as the original divorce petition, in reality it is not needed until later in the process or if any issue arises about the status of the marriage itself.  So it is not vital for the initial filing.  Of course if the hard version of the divorce petition is printed out by the court service it will result in additional printing costs.  But this is the nature of IT usage.  In like measure the court service will not have to print out so many documents for service if they are sent out electronically.  So it washes through.  It is unclear whether the online form-filling will establish a new case. Will the filling in of the petition result in the generation of a new case or will the new case only be generated once the petition is printed and then sent to, received by and is processed by the court? It is unclear. If it is the latter then we see only limited differences between that and the current system where a litigant can fill in the form online through the HMCTS website and must then send the petition to the court. More will become apparent when the pilot is rolled out. 

4.    We query what will be the time of lodging of the petition. Will it be at the time of completing the form online or will it be when the physical form first interacts with the court? This vitally affects all lawyers undertaking any cases with an international, specifically EU, aspect.  By EU law, it is vital to race to court, ignoring mediation and reconciliation and letters before action, in order to be the first to lodge the proceedings in the favourable country and therefore secure jurisdiction.  Timing of what it means to be first to lodge has lis pendens implications under Article 19 of the Brussels II Regulation.  We have written elsewhere about the dramatic uncertainty of the family court rules, and arrangements in family court buildings, about being first to lodge, winning the race to court we have highlighted this is particularly important when it comes to online filing. Having shown this issue, it is very disappointing that this pilot scheme does not make the position clear.  Sadly this will produce only more litigation as parties litigate over who won the race to court.  Judicial authorities seem to indicate that physical receipt by the court is sufficient. What does this mean with electronic filing?  If lodgement takes place at the time of the electronic form-filling then we might see a rise in the numbers of litigants using East Midlands Divorce Centre as their representatives have a quick and easy way to secure jurisdiction, first to lodge, without having to physically attend court or deliver paperwork. This is all speculative and until we know more about the pilot scheme we can only guess the prospective results.  But we should not be having to guess and this should have been made clear at the time of the Practice Direction.

5. It seems to apply only to divorce and not to civil partnership.  Maybe this is a strict particular reading of the PD and we wait for more clarification.  With same-sex marriage, there are now fairly few civil partnerships.

6. The language used by the Practice Direction is curiously modern yet out of touch at the same time.  Several years ago there were moves to reform terminology.  A divorce petition became an application for a matrimonial order.  A decree nisi became the first decree.  The decree absolute became a matrimonial order.  Except that the terminology neither caught on nor was consistently applied across family law legislation.  It was silently dropped by general consent.  But the PD has suddenly lurched back in time, no doubt on advice from somebody technically clued up on secondary legislation if not aware of what goes on in practice, and uses these terms.  It makes reading the PD particularly challenging.  Certainly family law needs changes to bring fully up-to-date.  But where terminology changes have not found general acceptance, they should not persevere.

7. We understand that in early March 2017 the MoJ is holding an invitation only small group workshop on online divorces.  We hope to report afterwards.

So this is a step in the right direction and could have had the opportunity of so much justifiable praise and constructive input from the family law profession on the detail and workings of the scheme.  But large question marks exist about how the system will operate, the interrelationship between soft filing and hard filing and the roll-out of the rest of the divorce process including the effect it will have on the imperative to lodge first to secure jurisdiction. We hope the pilot scheme will be a success and that it will answer some of our questions. Electronic filing is nearly here; we want it to work for litigants and practitioners.  The brave new IT world may be dawning and we can see some light on the horizon but it is certainly not yet illuminating the path ahead.