It is being reported on social media that the Bury St Edmunds regional divorce centre is now taking 29 weeks to deal with applications for consent orders. Family lawyers have received this news with dismay and exasperation.
A consent order is an essential part of many divorces. Where parties can reach an agreement about financial issues, it is vitally important that a financial consent order is obtained from the court reflecting the terms of any agreement. Without an order, no financial agreement is enforceable, it may not be legally binding and certain things, such as pension sharing, cannot even be implemented. Most importantly, a financial consent order will usually include some form of financial clean break between the parties preventing or restricting any further financial claims being made in the future.
The process by which the parties (or, more usually, their solicitors – it is too complex for most non-lawyers to do it on their own) involves a financial consent order being drafted and then submitted to the court with a brief financial statement. No court hearing takes place and the district judge considers the paperwork in everyone’s absence. Provided that the district judge has no concerns about the order, the court makes the order and the court office stamps it with a seal and sends it out in the post.
For a court to now be taking more than 6 months to do this causes enormous difficulties for divorcing couples.
The delays at Bury St Edmunds have become a running joke among family lawyers. Bury St Edmunds is one of a handful of specialist regional divorce centres in which divorce petitions must be issued. Until a few years ago, divorce proceedings could be issued in almost any branch of the County Court, but following the establishment of “single” Family Court to deal with family cases, the Ministry of Justice and HM Courts & Tribunals Service decided to streamline the existing process and centralise divorces in a small number of specialist divorce centres. The centre at Bury St Edmunds handles divorces for the south-east of England and London.
This is a vast geographical area for the centre to handle and frankly it cannot cope. It swiftly became extremely slow to deal with divorces. Before the regional divorce centres were established, it was possible to get divorced in about 6 months, provided that there were no complicated financial issues that needed to be resolved. In a more complex case, it would probably take about 6 to 12 months, perhaps longer. It is now impossible to get divorced in less than about 8 months in even the most straightforward of cases and where financial issues must be resolved, it takes much, much longer.
I should stress that I am a court user and I have no inside knowledge about how the court office works. However, as far as I understand matters, one principal cause for the delay is that Bury St Edmunds has difficulty recruiting staff. Suffolk is a relatively affluent area and HMCTS do not pay particularly well.
Another reason is, I suspect, the fairly dreadful state of the court’s computer systems. It comes as a surprise to many people to learn that as far as IT is concerned, in the Family Court it is still the 1990’s. The court can cope with emails – just. It is almost impossible to communicate with the court other than in writing. Emails go unanswered for weeks on end, if they are answered at all. Telephoning the court is nigh on impossible; the last time I tried, I was put on hold for the best part of an hour and a half. When someone finally answered, I received a “Computer says no” response to my urgent query.
As far as I can tell, the process by which consent orders are approved is still largely paper-based. The application is received by the court and then goes into a huge pile. It will eventually be placed before a district judge who will approve or reject the order using a pen. It then goes back into another huge pile until eventually, some weeks later, a member of the court staff will pick it up, check that the order has been approved, stamp it with the court seal and then stuff it in an envelope and send it to the solicitors in the post. The court is drowning in paperwork and it takes months.
There is an online system on its way, but it is still very much in its early days and is not widely available.
In the good old days, before the Family Court, it used to take between two and four weeks for the court to approve and return sealed orders to us. It now takes months on end during which time it is impossible to know whether or not the order has been approved or rejected. It is not unusual for me to receive phone calls from clients wanting to know whether or not the order has been approved. I have to tell my clients that it is impossible for me to know until the order turns up in the post. Telephoning the court is pointless, even if you can get through. The answer from the court is invariably “The file is with the judge” when I suspect the reality is the file has long since left the judge’s desk and is now sitting in a huge pile in the court office. Unless you telephone after the court officer has processed the order, you are likely to be told that it hasn’t been dealt with by the district judge yet. The only way that I can tell that the order has even been received by the court is when the cheque for the court fee has cleared.
This causes enormous problems in many cases. People understandably do not want to delay implementing agreements once a deal has been reached. In a case where a spouse is going to purchase the other spouse’s interest in the property, he or she will probably have obtained a mortgage offer. They will want to go ahead with the conveyancing as soon as possible, not least because the mortgage offer may be about to expire.
Another problem can be capital gains tax. Normally, there is no capital gains tax payable in the event that you sell your home or transfer it to your ex-spouse. However, once you have been separated for a period of 18 months, you lose this primary residence relief against capital gains tax and may incur a tax bill as a result of selling it or transferring it. This 18 month grace period will be reduced by the government to only 9 months in April 2020, at which point, it will potentially affect almost all people who get divorced and who own their own home.
It is of course possible to implement an agreement before the court makes a financial order, but this is risky. All solicitors have had cases where agreements have broken down and one person starts demanding more or stops cooperating. It is therefore prudent to not implement any agreement until a legally binding order has been obtained from the court. However, if the court is going to take months on end to approve the order, the parties inevitably going to want to go ahead as soon as possible and they have to take the risk that their ex demands more once they have received their share under the terms of the agreement.
Solicitors do what they can to make agreements as legally binding as possible. For example, I now frequently have cases where we formally record the financial agreement in a Deed of Separation simultaneously with divorce proceedings being underway and we then obtain the financial order months later; in the past, a Separation Deed would only have been seen in a case where a couple was not planning to divorce for at least two years.
All of this is thoroughly unsatisfactory. It is hoped that things will improve as better IT, online divorce and no-fault divorce are introduced, but for the time being there is little we can do but wait for things to get better and cope as best as we can.
27 October 2019
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