Lockdown, Logjams And The Family Courts 

Published on 14 October, 2021 | Holly Cook

In recent months, the UK – and, indeed, the rest of the world – has been emerging from lockdown.

The staging of music festivals and football matches as well as the gradually busier commute to work have all been taken as indications that life is getting back to something approaching normality.

We have now also been provided with a glimpse of how that process has affected the work of the Family Court.

In the weeks after Prime Minister Boris Johnson imposed restrictions to limit the spread of coronavirus, the Family Court was forced to prioritise the cases which it handles, steps which meant that the most urgent matters, such as those involving child abduction or domestic abuse, were dealt with first (https://www.judiciary.uk/wp-content/uploads/2020/04/The-Remote-Access-Family-Court-Version-4-Final-16.04.20.pdf).

Even though many cases were dealt with online and via virtual hearings rather than face-to-face, the volume of applications being made didn’t necessarily tail off, as the President of the Family Court, Sir Andrew McFarlane, acknowledged in June last year (https://www.judiciary.uk/wp-content/uploads/2020/06/The-Road-Ahead_FINAL.pdf).

According to figures newly released by the Ministry of Justice, that demand has continued (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2021/family-court-statistics-quarterly-april-to-june-2021#financial-remedy).

Between April and June this year, the number of new cases which began in the family courts was up 14 per cent on the same period in 2020.

The biggest single rise saw a 72 per cent increase in applications relating to the financial aspects of divorce.

During the pandemic, many couples, faced with uncertainty not only in their personal lives but also in the employment and housing markets, were simply unable to determine a suitable and fair way to divide their joint assets.

The very fact that individuals were prevented from all but essential travel made it impossible, for instance, to contemplate moving home.

However, what we have had in recent months is a combination of factors coinciding with the realisation by spouses that marriages had run their course.

The relaxation of Covid restrictions has arguably made it easier for people to go about some of the practicalities of a divorce, such as seeing a lawyer in person.

Husbands and wives have also had to contend with the end of the Stamp Duty holiday introduced by the Government in July last year to help prospective home buyers whose finances had been affected by the pandemic.

That chance to buy property came to a close on the first of this month (https://www.bbc.co.uk/news/business-53319433) and, I’m sure, may well have been behind the decision of at least some couples to agree a financial settlement on the best possible terms as soon as they could.

As the Ministry of Justice has identified, the ability to divorce online has played an increasing role.

Between April and June, some 18,936 divorce petitions – 72 per cent of the entire total – were submitted through the Ministry’s digital divorce portal.

A similar online system is also being gradually rolled out across the country to handle the administration of the financial aspects of divorce.

Concluding that process is one of the MoJ’s objectives for the remaining months of the year (https://www.gov.uk/guidance/hmcts-services-online-divorce-and-financial-remedy).

The imperative is not just because of the need to expedite the current level of cases. Next April, the biggest shake-up of divorce law for half a century takes effect.

The Divorce, Dissolution and Separation Act 2020 provides for so-called ‘no-fault’ divorce and is anticipated as potentially prompting even more couples to leave what they believe to be failing marriages.

It should have come into force this autumn but in May, Chris Philip, the then Parliamentary Under-Secretary of State at the Ministry of Justice, revealed that schedule to have been “ambitious” (https://questions-statements.parliament.uk/written-questions/detail/2021-05-25/7278).

One of the elements holding up the implementation of the new law was the need to upgrade the online divorce service to ensure that it could cope.

That there might well be plausible reasons for delay, though, doesn’t necessarily comfort married couples who want to split up now and find that the process of securing the divorce and sorting out their finances is taking even longer.

Even so, there is something that more individuals in their position are doing for themselves.

Sir Andrew McFarlane remarked last year that the extra delays brought about by Covid should focus more attention on Alternative Dispute Resolution: mediation, ’round-table meetings or arbitration.

It is something which myself and my colleagues at Hall Brown have found increasingly popular with clients eager to find a swift and productive solution.

Such methods are not necessarily suitable for everyone. Nevertheless, they do allow couples to agree a settlement and move on with their lives without being subject to the delays which even the Ministry of Justice has had to admit exist.