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Divorce in 2018

The Government have now announced a consultation to review the way in which couples can obtain a divorce. The Justice Secretary David Gauke, has commented that he wants to “reduce the antagonism of citing fault and the anxiety it creates”. The consultation period has begun and will close on 10 December 2018 The government has highlighted a number of proposals such as:

  1. i) Creating a new process to allow people to notify the court of the intent to divorce;
    ii) Removing the opportunity for the other spouse to contest a divorce;
    iii) Keeping the sole ground for divorce as the irretrievable breakdown of marriage and removing the need to show evidence of the other spouse’s conduct or a period of separation; and,
    iv) Reviewing the minimum time frame between the interim decree of divorce (decree Nisi) and the final decree of divorce (decree absolute).


HM Courts and Tribunals Service tests fully digital divorce application
Full online divorce application process is being tested across England and Wales

Over 130 online applications made in the first week

HM Courts and Tribunals Service has issued a press release confirming that: "Launched last year, the pilot initially allowed people seeking a divorce to use an online system which offers prompts and guidance to assist them in completing their application. They would then print off the form and send it to the court. This month HM Courts & Tribunals Service (HMCTS) has extended the service so that the application is now fully digital – submitting the form, sending the relevant documents, and payment. 

It confirms that in the first week over 130 online applications were received and that, "The online system has drastically cut the number of applications being returned because of errors – showing a 90% improvement from paper forms."



Background

When the court will exercise its power Lord Wilson felt that the proceedings had been bedeviled by a failure to distinguish between the existence of the court’s jurisdiction to release the wife from her undertaking, and the circumstances in which it would exercise its jurisdiction.By reference to civil case law, Lord Wilson stated that one would confidently conclude that there was a full jurisdiction to hear the wife’s application for release from her undertaking, although the exercise of that jurisdiction in her favour would be likely to attract lively debate. He noted that the Court of Appeal in the decision in Mid-Suffolk District Council v Clarke [2006] EWCA Civ 71 held that unless there had been a significant change of circumstances since the original undertaking was given, grounds for release from it seemed hard to conceive.

Variation of 

addressed by Lord Wilson: the courts’ general powers to vary orders under section 31 of the Matrimonial Causes Act 1973; and specifically the courts’ power to vary orders for sale made under section 24A(1) of the Matrimonial Causes Act 1973.

Looking at applications to vary generally, Lord Wilson noted the inclusion of section 31(7) of the Matrimonial Causes Act 1973. The provision provides: ‘In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates…
Lord Wilson stated that it was worthy of note that parliament did not in sub-section (7) or elsewhere in the Matrimonial Causes Act make a change of circumstances a condition for exercise of the jurisdiction to vary ‘unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive’.

In granting the wife’s appeal and confirming the court’s power to release her from her undertaking, Lord Wilson remitted the matter back to HHJ Waller to decide whether the jurisdiction should be exercised. Lord Wilson directed that HHJ Waller would need to consider the following:
(a) He will give first consideration to the welfare of the two children, but that was a consideration which may be outweighed by other factors
.(b) He will have regard to all relevant circumstances including, in particular, whether the wife can establish a significant change of circumstances since her undertaking was given.
(c) Whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants.

Varying orders under section 24a of the Matrimonial Causes Act The wife’s undertaking to sell the property was found to be equivalent to an order for sale under section 24A. As such orders are variable under section 31(2)(f) of the Matrimonial Causes Act 1973, it followed that the court had the power to release the wife from her undertaking.The fact the court has the power to vary an order for sale under section 24A is somewhat unusual as the majority of capital orders are not capable of variation under section 31. 

Lord Wilson carefully considered the Court of Appeal’s decision in Omielan v Omielan [1992] 2 FLR 306 in which Thorpe LJ held that section 24A was a purely procedural section inserted into the statute to clarify or expand the court’s power of implementation and enforcement. Accordingly, any power to vary such an order must be construed to be equally limited to matters of enforcement, implementation and procedure. 

He described this as not being able to revisit the ‘territory’ (or substance) of the original order.Lord Wilson disagreed. He stated that where parliament has conferred jurisdiction on a court, he saw no scope for a court to say that a part of its power does not exist. He found the concept of different territories hard to apply in a financial order where the terms are interlinked.

Dissenting judgment of Lord Hughes

Lord Hughes’ dissension was in relation to the principles upon which the court would exercise its power to vary, rather than the existence of the courts’ power. He emphasised that orders of a capital nature cannot be varied in their substance. Although it was permissible to seek a variation to work out or enforce the original order, it was impermissible to vary it substantively. He described the distinction between the two as being the ‘acid test’. 
Lord Wilson commented upon Lord Hughes’ views and stated that he could not subscribe to the ‘acid test’ articulated by Lord Hughes.


Criminal Finances Act 2017

This was passed just before the election and will, when in force, increase civil recovery powers in relation to money laundering and terrorist financing, including the introduction when in force of the unexplained wealth orders. However, new offences that can be committed only by a ‘relevant body’ and not by individuals will come into force on 30 September 2017.
A relevant body (B) is guilty of an offence if a person commits a facilitation offence when acting in the capacity of a person associated with B. It is a defence for B to prove that, when the UK tax evasion facilitation offence was committed, either B had in place such prevention procedures as it was reasonable in all the circumstances to expect B to have, or it was not reasonable in all the circumstances to expect B to have any prevention procedures in place



April 2016

Legal Aid
Legal Voice reports that the Bar Council has said British justice costs the less than €2 per week or ‘the price of one cup of coffee’.
 
The statement was made by Chairman of the Bar, evidence to Labour’s legal aid commission. Doerries took issue with the government’s oft-repeated assertion that the UK’s expenditure on legal aid per capita was “more generous than any other EU nation or comparable common law jurisdiction." The Chairman said: "Every justice system has different cost drivers and looking simply at legal aid in isolation we would suggest is unhelpful.”