Digital divorce — what is it and is it here to stay?

What is a digital divorce?

Digital divorce means dealing with the divorce process itself through an online portal with the court, instead of using paper and the post. It is the process of legally bringing the marriage to an end.

Additional steps may need to be taken to resolve issues about child and financial arrangements. The Family Court has introduced some further online systems for lodging applications and consent orders, as part of an ongoing programme designed towards streamlining court services.

What are the benefits of a digital or online divorce?

The main benefit of a digital divorce is speed. Online applications are acknowledged and processed far more quickly by the court. They are also more straightforward and avoid technical language and jargon to simplify the process.

As a result, administrative errors, which have historically led to delays for court users, are not as common in digital divorces. People would inadvertently make mistakes when completing divorce forms on paper, forcing the court to reject their application, and creating delays for all parties involved. The majority of digital divorce applications are error-free as mistakes are picked up by the system. For example, if an applicant forgets to fill in an entry field/answer a question, they will not be able to complete that page of the online form.

What are the disadvantages of digital divorces?

Online solutions are not an option for everyone, and digital divorces can alienate those without access to the internet.

The availability of digital divorces can also tempt people to move too quickly. Petitioners can apply for a digital divorce at any time day or night, perhaps after a heated row with their partner or too much to drink, instead of having to wait until normal business hours.

The petitioner (the person who applies for the divorce) must still pay a court fee, but they do not need legal representation to apply for a digital divorce. Handling the administrative side of a divorce through an online portal saves money in legal fees, but it also means some people issue and conclude divorce proceedings without fully appreciating the legal ramifications if they haven’t taken legal advice before issuing their petition.

It is always advisable to speak to a solicitor before issuing a divorce. For example, it is not obvious on an online application that couples may need an additional financial order to formalise their financial settlement, or that it may be advantageous to delay the final decree absolute until a financial settlement is reached.

We will often recommend that a client completes the online process themselves, as the process itself is fairly simple, with solicitors on standby to review the final submission as required, and support on steps where legal counsel is critical, such as timing, jurisdiction or tax year arrangements.

Have they been a success so far?

Digital divorces have been available to the public since May 2018, and to lawyers since January 2020. They have been successful — especially for the petitioner applying for the divorce.

There have been occasional technical glitches and anomalies. For example, if a lawyer acts for a respondent of the divorce, the respondent has been unable to use the online system. That is now being addressed by the court. If the respondent is representing themselves without a lawyer, they can use the online system.

Will virtual divorces continue, even when the pandemic ends? Or will it all revert to the old way of doing things?

Digital divorce precedes the pandemic and is part of the wider digitalisation of the civil service structure being undertaken by the Government, such as online tax returns for HMRC. The digital system is here to stay.

Although official statistics for 2020 are yet to be released, anecdotally, legal practices across the UK and internationally have almost all witnessed an increase in family law enquiries including the number of divorcing couples over the past year. It stands to reason that the uptake of digital divorces will have increased in turn, not least given the broader growth in the use of online platforms and services during lockdown, and is a trend we expect to continue.

What about remote or virtual court hearings?

Although court hearings are unusual in divorce cases, they are often needed to assist in the resolution of disputes between parents and/or to resolve financial settlements on divorce. Remote or virtual hearings, via Skype, Zoom or other video platforms, also precede the pandemic for some court litigation, although were not regularly used in family cases.

The infrastructure was already in place for ‘by phone’ court hearings before the pandemic, but video hearings for court disputes, again already progressing pre-Covid, were a newer innovation and have developed considering during the last year. They are working well in most cases after some teething problems with the technology.

As we emerge from restrictions, we are seeing a hybrid use of hearings by courts. Some hearings are conducted face-to-face, some are conducted remotely by telephone or video platforms, and some are a combination of the two. It is largely anticipated that this pattern will continue after the pandemic.

Some litigation is preferable face-to-face, such as final hearings involving arrangements for children or when witness evidence is needed, but many procedural case management hearings, previously done face-to-face, can be dealt with more quickly and cost-efficiently remotely by telephone or video conferencing.

Remote or virtual hearings are not necessarily cheaper as the legal work needed to prepare for the hearing itself is the same, but the petitioner will save on incidental costs like travel time and expenses.

Summary

Our advice is, and will remain, that anyone seeking a divorce should seek legal support, even if they ultimately handle the online process itself. While digital divorces have clear advantages in terms of accessibility, speed and convenience, couples cannot use this process to resolve any issues arising separately from the divorce itself and there may be interconnected practical and timing matters to consider before commencing the divorce. Lawyers have a responsibility to advise individuals on this best practice course of action to avoid unnecessary disputes and headaches.