I’m sorry to report that today’s Daily Mail article ‘The tick box divorce: Couples will fill in new ten-page online form detailing money and assets they want under plans to streamline the system’ is (to use a technical legal term) totes nonsense.
I exaggerate. The form is ten pages long.
The article notes that ‘Divorcing couples will be asked to fill-out a tick box form detailing the money and assets they each want under sweeping plans to streamline the system. The ten-page document – which could potentially be downloaded online – lets spouses tick boxes asking for maintenance payments, a lump sum and a share of a property. …. Last night legal experts warned the forms could ask too much of couples – who may just ‘tick every available box’ – while family campaigners said it would ‘make the break-up of a marriage about nothing more than money’.
The Mail is ostensibly reporting on plans to separate the divorce process from the process of getting a court order splitting the parties’ assets on divorce. These are already separate to some extent: it is possible to get divorced without a court order dealing with the assets although this is a very bad idea because it means financial claims can be made a long time later. Getting a decree absolute doesn’t end your right to claim against your ex.
What happens now is that in the divorce petition you can tick boxes to assert a claim for specific types of financial provision, such as property transfer, a lump sum, spousal maintenance, or a pension share. This gives the court jurisdiction to make an order for those things, but some may not be relevant in your own case. It’s a good idea to tick all possible relevant boxes just in case something you hadn’t anticipated pops up, such as a pension that you had forgotten about. In other words, we currently do exactly what the Daily Mail is suggesting is a new thing. The Mail also reports that the form ‘could potentially be downloaded online’. That’s the case now – current forms can be found on the Court FormFinder website.
So what exactly is changing?
A few years ago, divorce petitions stopped being dealt with in local courts and were instead processed at a smaller number of specialist divorce centres. Now, the same thing is happening with court hearings dealing with finances. Specialist judges will hear those cases at a smaller number of ‘financial remedies courts’. I wrote about it here.
In order for the cases to be allocated to the right level of judge, people will be asked questions on the form designed to identify how complex it is likely to be to sort out financial matters.
The Mail then reports that ‘the reforms could hasten the disappearance of the idea of fault from divorce law. Claims that divorce has been caused by adultery or unreasonable behaviour will not be considered by the financial courts, who will simply look at monetary matters. … Kathy Gyngell, co-editor of the Conservative Woman website, said: ‘This is clearly a attempt to bring in no-fault divorce through the back door. It will make the break-up of a marriage about nothing more than money. Marriage will become disposable.’
There is nothing whatever accurate in that statement. Getting rid of divorces based on allegations of fault by the other party (such as adultery) is something that quite a few people believe should happen, including the President of the Supreme Court (Baroness Hale), two Presidents of the Family Division (James Munby and the late Nicholas Wall), and the solicitors’ group Resolution. But the reasons for a marriage breaking down are not relevant to the division of assets on a divorce except in extremely rare cases – the leading case involves someone attempting to murder their spouse. The normal stuff that is found in a divorce petition has no effect at all. And if there is a rare case of extreme misconduct, the financial remedy courts will be able to take that into account, just as they do now. And if it is the usual type of misconduct, they won’t take that into account, just as they don’t now. And none of this has anything to do with whether we introduce no-fault divorce or not.
The Mail notes that ‘The new courts will also hear disputes over money between unmarried cohabitees who break up – a move that is likely to erode the legal distinction between marriage and informal relationships.’ Again, this is no different to the present situation. Unmarried partners who break up can make very few financial claims indeed, and these are already dealt with at the same courts as divorce cases.
So is there anything accurate in this article?
Solicitor and legal commentator Andrew Newbury is quoted as being concerned that when people are asked to give information about their financial position so it can be heard by a judge with the right level of experience, they won’t yet have enough information. That is a valid concern because lots of people do not know about their spouse’s financial position, and many have no idea how much certain assets, such as pensions, are worth. However, the form seems to simply be about allocating to a level of judge rather than the kind of detailed financial information exchange that comes later in the process. It specifically states that you should give ‘a concise broad assessment of the nature and quantum of assets and income likely to be involved in the case, as well as any features which you think are likely to make the case more complex than the norm. If you are unaware of the full extent of or value of assets then it is acceptable for you to say so, but please give as detailed an estimate as you are able to at this stage’.
The Mail article has been triggered by the latest View from the President’s Chambers, the President being the President of the Family Division, Lord Justice Munby. If you want to consider the form itself or the View from the President’s Chamber, you can do so here.