The current cost of a divorce in the courts of England and Wales is £410. For this sum your petition is checked, issued and posted anywhere in the world, the acknowledgement of service document is considered by a clerk and sent to you, your Decree Nisi application is set down for a hearing by a District Judge, you have a Decree Nisi hearing and the certificate is sent out to you, and your Decree Absolute application is considered and processed by the court.
A financial application costs £255. For this fee, you receive a court timetable for the disclosure process, a First Appointment hearing, a Financial Dispute Resolution hearing and a final hearing, which will be listed for as long as it will take, often spanning several days in court.
A Children Act application for a contact, prohibited steps, residence or specific issue order costs £215. For that you will have as many hearings as it takes and the potential involvement of CAFCASS in your case, the court appointed welfare officer. A Children Act case may involve multiple hearings, including fact finding hearings and a substantive final hearing if required.
As we enter the Black Friday and Cyber Monday season these sums of £410, £255 and £215 may seem modest compared to the retail cost of the latest Apple gadget.
It seems that the government has come to the same conclusion, and have embarked upon a consultation about court fees in the family courts, which is open until 21 January. I will attach a link to the appropriate site below, so that you can respond if you wish.
It advises us that courts are currently not operating at “full cost recovery” and that the the Ministry of Justice must cut its cloth by over £2.5 billion by 2014/15. Consequently the government’s consultation sets out its belief “that it is preferable that those who can afford to pay should contribute more to the costs of the courts, so that access to justice is preserved and the cost to the taxpayer is reduced.”
Alongside the consultation the government has published some research about use of courts. The sample size of that research is 4 interviews with solicitors who undertake family work, two sole practitioners and two small firms. The stated conclusion of that research is that litigation in the family jurisdiction “is seen as a last resort”. The view of these four solicitors in relation to increased fees was as follows:
Views on increasing the fee for an uncontested divorce (to £500)
“The suggested increase in the fee for an uncontested divorce was considered to be unlikely to have an impact on volumes – the solicitors interviewed felt most clients would not be dissuaded from getting divorced due to a fee increase of this scale. However, one firm felt that it might encourage people to apply for a divorce directly themselves (rather than through solicitors), particularly if there were no financial or child contact issues involved. There was also a view that the fee increase could be seen as unfair because it does not reflect the amount of time spent by the court processing the case (in uncontested cases, the judge only looks at the case once). And some felt there could be access to justice issues for low earners (with incomes just above the remission thresholds) because there are no alternative routes available to divorce applicants.”
In fact in the consultation paper, the government has decided that divorce is an area where “enhanced fees” are appropriate and are looking to increase the fee to £750. By “enhanced fee”, they mean that rather than the fees covering the cost, the fees should exceed cost, and therefore make a profit which can be used to meet the general deficit of the court system. The rationale for this is that the research the government has commissioned demonstrates that the court fee is a minor part of the cost of a divorce, and therefore will not affect access to the courts. The key aspect of the paper in relation to divorce fees is in these three paragraphs:
“Rationale and proposals for reform
Under the cost recovery proposals set out in Chapter 2, the fee for a divorce petition would remain unchanged at £410. However, we believe that divorcing couples would be prepared to pay a higher fee to complete the dissolution of the marriage. We believe that it is right that those who can afford to pay more should do so to ensure that the courts are properly funded. Fee remissions would continue to be available for those who qualify.
In Chapter 2, we estimated that the cost of an uncontested divorce was around £270. The government’s view is that the fee for a divorce petition should be set at a level above costs. Our proposal is that the fee should be £750, or around three times the cost of the proceedings.
We estimate that this would generate additional income of around £30 million per annum.”
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