Online divorce and the potential for fraud

The Family Court is experiencing enormous delays. Never fast at the best of times, the COVID-19 pandemic has caused chaos with hearing dates and the processing of applications. However, not all of it is down to the virus.

A few years ago, following the creation of the so-called single Family Court, HM Courts & Tribunals Service (HMCTS) decided to reorganise the way in which the court deals with divorces. The vast majority of divorces are paper exercises, requiring no hearings to deal with the actual divorce itself; the bringing of the marriage to an end. (There are still many financial hearings, but such proceedings are ancillary to the divorce). A handful of specialist divorce units were created to handle the divorces. At the time, this was criticised by the some on the right, such as former Tory MP and later Brexit Party MEP, Anne Widdecombe, as cheapening marriage, conveniently overlooking the fact that there was absolutely no change in the law, merely in where the divorce paperwork was being processed.
If anyone expected the divorce process to be streamlined by the new regional divorce units, they were to be sorely disappointed. The divorce units (and particularly the largest one at Bury St Edmunds) proved to be breathtakingly slow. The pace at which proceedings take place has become even slower; in part due to the COVID-19 and also due to the closure of half of the divorce units as the divorce process moves online.

A paper divorce can take over a year. An online divorce can be done in potentially under six months (albeit that in cases where financial matters need to be resolved, it will usually take longer). The irony is that when no-fault divorce is introduced, probably in autumn 2021, it will actually take longer to get divorced because there will be a minimum cooling off period of six months in between issuing the divorce application and then being able to apply for the conditional divorce order (as the Decree Nisi will be known), followed by a period of at least six weeks before the application can be made for the final divorce order (the new name for the Decree Absolute).

So, how is the new online divorce process working?

Overall, it is a vast improvement, albeit that is still rather glitchy. A couple of weeks ago, HMCTS had to tell practitioners to not use the portal because it was not allowing the divorce petition to be submitted unless users repeatedly clicked on “Submit”; as a result, some solicitors received notice that their fee accounts were going to be charged multiple court fees. I confess to horror when I read that; I had just issued a petition where I had to click “Submit” about a dozen times before the petition was accepted by the portal. The court is is £550. I braced myself for a fee account statement that said that HMCTS was going to take payment of £6,600. To my intense relief, in my case only one fee was taken.

The portal is still plagued by glitches. I was unable to log on properly for two days in the past week. These gremlins are probably to be expected with any new online service. The portal is still in its Beta phase and there are some significant issues that need addressing in my view:

• The portal cannot currently cope with the concept that a respondent might be legally represented. If the petitioner inputs the respondent’s solicitors as being the address for service, the portal treats the divorce petition as being a paper divorce. This strikes me as something that really should have been sorted out long before the portal went online. At the moment, Resolution’s guidance is that the respondent’s home address should be used. HMCTS has promised to sort this out in due course, but my understanding is that it is not be imminent and I suspect it will be sorted out when the portal is redesigned for the new no-fault divorce law. (I would be delighted to be corrected if I am wrong about this and HMCTS have actually sorted this out).

• The portal only requires the place of the parties’ marriage to be input if they married outside England and Wales. For English marriages, it seems to be able to read the marriage certificate, which would explain why I noticed that one of my clients’ divorce petitions says that she got married in “Corchester”. For some reason, this did not show up on the draft divorce petition that I was able to download from the portal before it was issued, but appeared on the issued divorce petition.

• Some of the wording on the portal is odd. It talks about “submitting” a petition, whereas the correct terminology is that it is lodged or issued. (“Filing” for a divorce is, strictly speaking, a ghastly Americanism). There is a document which describes itself as an “Acknowledgement of Service”, but is nothing of the kind; it’s a letter to the respondent accompanying the divorce petition, asking him or her to acknowledge it. The actual Acknowledgement of Service is referred to as the “Respondent’s Answer”, but this terminology is wrong too. An Answer is a very different document; it is a formal defence to a divorce, not one acknowledging receipt where it almost always says that the divorce will not be defended.

• Some of the above are mere irritants that do not really matter other than lawyers. After all, we are professional pedants. However, I have spotted one significant flaw which gives me enormous cause for concern. There is the potential for a perversion of the course of justice.

The letter to the respondent contains a code that he or she can input into the portal so that acknowledgement can be filed electronically. This letter can be downloaded by both sides. It comes with a warning that “You must only sign in to this service if you are [NAME]. You could be fined or imprisoned for contempt of court if you access this service illegally.”

That warning is all well and good, but giving the petitioner access to this code creates the possibility that a dishonest petitioner (or, perish the thought, an unscrupulous petitioner’s solicitor) could simply file the acknowledgement of service on behalf of the respondent without him or her knowing. If the petitioner did not put the respondent’s real address on the divorce petition, the respondent would never receive the divorce petition and would be none the wiser.

You might think that surely no-one could be so stupid. However, there have been cases where a party in a divorce has faked divorce papers, in circumstances where the truth was bound to come out sooner or later. It’s not just done by the ignorant or plain thick either; many apparently learned and intelligent people sometimes engage in fraud that are bound to fail in the end. In one case, fraud was committed by an experienced French judge who faked a marriage to her former partner to prevent him from marrying his new girlfriend.

Litigants in person use a different portal, although I suspect that both portals are similar. It may be that where a petition is representing himself or herself, then the letter is available for them to download, but this is still risky. If a client uses a solicitor, the file belongs to the client. If the client sacks the solicitor, the file may be passed to the client who would then have the file copy.

The petitioner does not need a copy of this letter. It should not be available for them to download. It is only a matter of time before someone, faced with an uncooperative spouse, succumbs to temptation.

23 August 2020

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