Whether you choose to divorce in England and Wales by using lawyers or make use of a DIY divorce solution, you will (almost inevitably) need to pay the Court fee to have your divorce petition issued. The current fee is £410. However, the government is proposing that this should be increased by 83% to £750.
Potential Justification for Increasing Divorce Fees
It could be assumed that this increase is now due because the fee has remained static for many years. However, this is far from the case. In 2006 the cost of issuing a divorce petition increased from £210 to £300. Four years later, in 2010, there was a relatively modest rise to £340. Less than three years later, in July 2013, the cost rose to its current level of £410. Now, less than a year after the last rise, the government is proposing the most significant increase to date: from £410 to £750. To put this further into perspective, the cost of a divorce petition in 1990 was a mere £40!
It is clear from the above paragraph that these fee rises have been arriving with increasing frequency. Therefore, it would seem foolish to assume that, if the proposed fee increase goes ahead, this would signal the end of the trend.
A second potential reason for the proposed increase is, perhaps, that the current fee of £410 simply isn't enough to cover the cost of issuing the Petition. Again, that is not the case. The Ministry of Justice in its proposal document estimates that the actual cost is only £270, far less than the current fee, let alone the proposed fee.
A third possibility is that this fee increase would signal an intention to support the institution of marriage by deterring those considering divorce with a punitive issue fee. In fact, the Ministry of Justice specifically sets out in the document that the fee increase is not intended in any way to impact upon people's behaviour at all.
The Actual Justification
So what is the justification for proposing such a disproportionate fee increase? Not surprisingly given the current economic climate, saving money is at the root of the current proposals. While I am focusing on the impact on divorcing couples, in reality, the proposed increase to the costs of divorce is only one aspect of saving money currently spent on the civil and family Court systems.
The principle has long been that those using the Courts should pay the cost of that usage. However, this is far from being achieved. In 2012 the deficit in the civil and family Courts was £100 million.
The usual rule (as set out in Managing Public Money) is that public bodies providing services should charge only for the cost of those services and no more. However, the Ministry of Justice proposes making an exception by charging 'enhanced fees' for certain Court services in order "to finance the efficient and effective system of courts and tribunals". This is because the government believes that "it is reasonable that, for certain proceedings, those who use the courts should make a greater contribution to the costs of running these services where they can afford to do so".
So why have those seeking a divorce been targeted and the proposal made that they should pay almost three times the cost of their application? In the words of the Ministry of justice this is:
"because we believe that the party bringing the case will be able to afford to pay a fee which better reflects the value of the proceedings to them"
"we believe that divorcing couples would be prepared to pay a higher fee to complete the dissolution of the marriage. "
Put slightly less dryly this appears to me saying that people will really want their divorce and therefore they will be prepared to pay for it, even though they will be paying significantly more than cost price. That doesn't sound very fair to me.
That is particularly the case when you consider that those issuing divorce petitions are not necessarily intending to use the Courts for litigation at all. There are approximately 120,000 divorce petitions per year of which 95% are undefended. Some of those couples will use the Courts to obtain a financial settlement. However, many financial separations, whether complicated or a simple clean break are managed without the need for litigation.
As a side note, there is still intended to be a remission system (i.e. a system in which your fees will be paid if you genuinely can't afford to pay them). However, the Ministry of Justice states that this cost will be borne by the taxpayer, not be other Court users.
Reactions to the Proposals
Resolution, the national organisation of family solicitors committed to a constructive approach to family breakdown has criticised the proposals and pointed out that there is no commitment that this extra money would be used to support the family courts.
The Judiciary of England and Wales has also criticised the proposals. It considers that increasing the cost of the divorce petition will prevent many people (especially women of limited means) from applying for a divorce. It also points out that the Ministry of Justice provides no evidence for its assertion that those applying for a divorce "can afford to pay more".
The response to the consultation will be published in Spring 2014. If you wish to have your say, you can download the proposal document here.