News focus: No-fault divorce looms but closure of online portal blindsides solicitors

The Divorce, Dissolution and Separation Act represents the biggest reform of divorce law in 50 years, ushering in a new era of no-fault divorce.

The act received royal assent two years ago but the provisions come into force on 6 April after the government admitted last year that its original timetable (autumn 2021) was too ambitious.

At the time ministers said they were ‘committed to ensuring that the amended digital service allows for a smooth transition from the existing service which has reformed the way divorce is administered in the courts and improved the service received by divorcing couples at a traumatic point in their lives’.

But recent events have left practitioners worried.

Some logged in to the MyHMCTS online portal this week to discover a notification stating that the divorce service would be closing soon due to changes in legislation.

‘Submit your saved application as soon as possible so they do not get returned. For new applications, consider waiting until the replacement service is launched – otherwise you may have to submit them again,’ the notice said.

Tony Roe, solicitor and family law arbitrator at Dexter Montague in Reading, described the situation as ‘wholly unsatisfactory’ and ‘shambolic’. He said it was unclear whether HMCTS will accept paper applications during the period that the digital service is closed, or whether practitioners will be able to seek consent orders.

The Gazette understands the current service will be switched off a week before the new regime comes into force, in order to stop people applying under the old provisions only to subsequently have their applications rejected and be told they have to reapply. A user guide explaining what practitioners should do when the current system is switched off is due to be published imminently.

The Ministry of Justice says the new system will be tested with practitioners before it goes live and comprehensive guidance will be available to them on the MyHMCTS portal. HMCTS staff and judges will be supported with training leading up to the changes.

'There was no minimum period before and it is probably a month to six weeks longer than you would have expected under the old regime. This has been a cause of concern for some, particularly domestic abuse charities'

Peter Burgess, Burgess Mee Family Law

Practitioners have yet to see the new court forms. However, Peter Burgess, a partner at Burgess Mee Family Law in London, says up-to-date precedents, which will inform final preparations, are usually received just before the law changes.

So with only a few weeks to go, what are lawyers telling their clients?

Lisa Pepper, a partner and accredited mediator in the family department at London’s Osbornes Law, says: ‘I am advising clients who want to keep things amicable and where there is no urgency to wait until the new rules come into force. This ties in nicely with the start of the tax year which can be beneficial for high-net-worth individuals looking to transfer assets as part of a divorce settlement but avoid capital gains tax.’

Burgess says some clients have delayed initiating divorce proceedings but most have not because there are ways under the existing rules to limit fault. There may also be pressing reasons why people do not want to wait.

‘The new system removes the obligation to cite adultery or behaviour if you haven’t been separated or living separate lives under one roof for two years and have the consent of the other party,’ he explains.

‘The old system was already significantly eroded so that the threshold for behaviour was very low anyway, so the benefit of a delay in amicable cases is questionable. Where the reasons for the divorce would have been contentious, this is a bigger change as it removes a seismic stumbling block.’

A downside to delaying proceedings, he says, is the potential impact of a new minimum timeframe.

He says: ‘There is a new statutory period of 20 weeks before the minimum six-week window between the two decrees (now called ‘orders’) which remains as before. The whole process cannot therefore be done more quickly than six months. There was no minimum period before and it is probably a month to six weeks longer than you would have expected under the old regime. This has been a cause of concern for some, particularly domestic abuse charities who worry that such a long period is an opportunity for perpetuating abuse. However, overall, the removal of blame, long campaigned for, is a watershed moment for those working in the field.’

The next few weeks will be crucial in ensuring the necessary IT changes do not cause stress and anxiety for practitioners and, more importantly, for couples seeking a divorce – especially given that the reforms are designed to make the legal process less stressful.