No-fault divorce will finally be introduced on 6 April 2022. However, many family solicitors are dismayed that HM Courts & Tribunals Service has not decided to reduce the court fee payable for a divorce.
The court fee has slowly crept upwards over the past few years. It increased during the autumn of last year from £550 to £593. Until 2016, it was only £410. However, at the same time, the disastrous regional divorce centres have gradually closed as the divorce process has moved away from old-fashioned paper applications to being almost entirely online. Why, solicitors have complained, does it still cost so much? Surely the court is making a profit?
The no-fault divorce process will be much simpler. While it won’t make divorce “easier” (as claimed by opponents of the changes – it is already easy to divorce), it will remove the potential for pointless additional conflict. Nevertheless, it will streamline the process.
For example, at the moment under the current system, an application for Decree Nisi involves a court Legal Adviser considering the application to ensure that the formalities have been complied with and that the “Fact” cited in support of the divorce petition (adultery, behaviour, desertion, two years’ separation with consent or five years’ separation) is sufficient to obtain the divorce.
In a no-fault divorce, this application will be known as an application for a conditional divorce order. It will no longer be necessary for a Legal Adviser to consider, for example, whether behaviour allegations are sufficient to justify a divorce or if the parties have been separated for at least two years. The court will therefore have to do less work. Fewer resources will be used. Therefore, why will it still cost £593?
It is widely believed that the court already makes a profit out of undefended divorce proceedings and many lawyers assume, probably with justification, that the cash-strapped HM Courts & Tribunals Service is not keen to give up that income.
It’s a tempting argument, but in my view, if HMCTS was to accept that henceforth a court fee should just cover the cost to the court of dealing with a divorce application, that would set a dangerous precedent. HMCTS policy might then become that a court fee must cover all of the cost to the court so that it can break even.
The court fee for applying to the court for a financial order in divorce proceedings where the parties are not agreed is currently only £275. A financial order application will involve significantly more court resources than the divorce application. In most cases, there will be between one and three hearings (A First Appointment, a Financial Dispute Resolution Appointment and a final hearing). Some more complex cases may require more hearings than that. The First Appointment and the Financial Dispute Resolution Appointment probably take up at least an hour of the judge’s time in court in addition to any reading of the court bundle beforehand. In a more complex case, it could take several hours for each of these hearings. On top of that, there will be the cost involved in the court staff administering the case, as well as the cost of running the court building, paying the staff, etc. The final hearing could take anywhere from half a day of court time to several weeks in a really complicated big money case.
Similarly, an application for a child arrangements order incurs a court fee of just £232. Most cases will take between 1 and 3 hearings, (a First Hearing Dispute Resolution Appointment, a Dispute Resolution Appointment and then a final hearing). Many hearings are handled by magistrates, who don’t get paid, but they still have to be trained, which is expensive. There are the same costs of administering the case and the running costs of the court buildings and staff salaries etc. Difficult cases may involve multiple additional hearings. All of this for a court fee of just £232.
There is no way that cost of all of this is covered by the court fee. I doubt that that it would even in a case where only a single hearing took place and the application was settled at court.
The last things that lawyers and their clients want is to suddenly have to pay a higher court fee that actually reflects the actual cost to the court. Litigation is already very expensive, most court proceedings will cost the client thousands of pounds in legal fees; a court fee that allows the court to break even would add to the burden for our clients and would inevitably lead to many of them being denied justice. Clients on low incomes might still qualify for Help With Fees, which exempts them from paying the court fee, but many clients on modest incomes would be not qualify.
In the aftermath of the COVID pandemic and the further economic chaos caused by the war in Ukraine, the government’s coffers are already under pressure. National insurance is about to rise. We are already more heavily taxed that we have been for decades. A government facing tough spending decisions and needing more revenue might look at court fees and see increasing them as a more tempting option than raising taxes further. HM Treasury might think “There is already a very high court fee for setting down a case for trial in civil proceedings. Why don’t we do the same in family cases?”
The Lord Chancellor, tasked with reducing the appalling delays in the Family Court, might also think this is a jolly good way of encouraging people to use alternatives to court, such as negotiation, mediation, arbitration or collaborative law, which are already usually much cheaper than litigation. The trouble is that, for all their merits, these alternatives all require co-operation by the other side. Large numbers of cases go to court because one party refuses to mediate or to commit to arbitration. These alternatives should be encouraged and promoted wherever possible; they have any other advantages in addition to being cheaper. However, they aren’t suitable in every case and where one party won’t use them, litigation is regrettably often the only option.
Arguing for a reduction in the court fee is tempting, but in my view, it is asking for trouble.
26 March 2022
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