On Friday morning, I entered my kitchen, nursing a sore head after the Armstrong Family Law Christmas party. I turned on the radio and my urgent quest for coffee and Nurofen was interrupted by Nick Robinson on The Today Programme talking about Form E.
It’s not often that anything as mundane as Form E makes the news. I know Form E very well; it’s the standard financial disclosure statement provided by divorcing couples in applications to the Family Court for financial orders. It’s a lengthy beast of a form, about 30 pages long, requiring full (and I mean full) details of your income and assets, to be accompanied by copious documentation to provide evidence of the figures. I’ve used it in one version or another for over 15 years.
Form E-gate has been a big news story above the past few days. The version available for free to download from the HM Courts & Tribunals Service website has been discovered to be faulty. The summary page, where the Form automatically adds the values of all the assets, has not been adding them up properly and has been ignoring people’s debts. There have been suggestions as a result that divorce settlements have been worked out wrongly, the Lord Chancellor has had to issue an apology and people are starting to say that the government will have to pay people compensation as result.
The error in the Form was discovered by a Mackenzie Friend; Mackenzie Friends are people who assist litigants in person to represent themselves, but who are not (usually) lawyers, and are unregulated and uninsured. I have seen some pithy comments implying that it is embarrassing that all the solicitors, barristers and judges failed to notice the error whereas a mere Mackenzie Friend managed to spot it.
I’m not surprised it wasn’t a lawyer who twigged that this was happening. We don’t use the version on the HMCTS website. Specialists in family law usually have their own specialist legal software providers who produce their own version of the Form E and numerous other court forms. By lunchtime on Friday, I’d received an email from a software provider telling me that their form was unaffected and could be used with confidence. The HMCTS version is most likely to be used by people who represent themselves. I can say with confidence that my clients have not been affected by any of this.
Furthermore, I don’t pay much attention to the summaries on the Form E that tot up what everything is worth. They’re a very blunt tool; for example, the summaries add up all the assets, including bank balances. This is misleading as it includes current accounts. Most people have at most one month’s wages in their current accounts. It’s full of money on payday and almost empty a few weeks later. It’s misleading to treat that as an asset available for division between the husband and wife so I usually ignore it.
It also adds up the value of pensions as part of the total assets. But again, this is misleading; pensions are unlike other assets as they can’t usually be liquidated (or at least not until you’re close to retirement). It’s common for lawyers to apply a discount to a pension fund’s value when comparing it against other types of assets.
When I want to know what the total assets are worth (including liabilities,) I do it on a separate single page spreadsheet or the old-fashioned way on a piece of paper with a calculator. The HMCTS’ Form E may have caused a problem with cases involving litigants in person, but I suspect that this will be a relatively small number of cases. Most Form E statements that I have seen that have been completed by non-lawyers have been filled in by hand.
19th December 2015