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Divorce fee “unjustified”

While the country and the people who govern us are in the grip of an almighty row about whether or not we should remain in the European Union, the normal parliamentary process as carried out by the various government committees goes on. The Justice Committee has recently been turning its mind to the significant increases in court fees imposed by the government as part of its programme to reduce public spending on the justice system. It released its report on the new court fees on Monday.

The Justice Committee is one of 19 Select Committees of the House of Commons. It was appointed to examine the expenditure, administration and policy of the Ministry of Justice and associated public bodies including courts and tribunals, and the administration and expenditure of the Attorney General’s Office, the Treasury Solicitor’s Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding in all areas consideration of individual cases, advice and appointments). The Justice Committee is chaired by Bob Neill MP, a Conservative former barrister, and is composed of five other Conservative MPs, four Labour MPs and one SNP MP.

To set the scene for the report, the Ministry of Justice has, like most government departments, been required to make significant savings as part of the government’s austerity regime. Over recent years the Courts Service has imposed more “enhanced” fees (those greater than the cost of the hearing involved) in order to support other areas of the legal system. These have included a 2013 rise in employment tribunal fees of up to £1,200, which led to a 70% drop in the number of cases being brought; fees for financial claims for sums over £300,000 increasing in 2015 from £1,920 to £10,000 (a plan to double that level to £20,000 has temporarily been shelved); and, most relevantly for us, the price of a divorce going from £410 to £550 on 21 March 2016, despite the fact that the average cost of processing a divorce is only about £270.

The Justice Committee has investigated these rises in court fees and has produced a full report, which you can read here.

Regarding divorce fees, the report first reminds us that the increase to £550 was in fact much smaller than the government at first wanted: “The decision to increase the fee for a divorce petition to £550 represented a partial reversal of the January 2015 announcement that the Government would not proceed with the proposed increase from £410 to £750. It should be noted that the £410 fee already represented an enhanced fee for such proceedings, the cost of which is estimated to average £270 for an uncontested divorce”.

The report goes on to summarise the evidence received on the matter of the court fee for divorce. The President of the Family Division (our ‘top judge’), Sir James Munby, said:

“There are only two things that the justice system does where you have no choice but to use the system. One is divorce; the other is probate. …. Therefore, we have a captive market….. I have to say that there is something rather unattractive—particularly if one is selling justice, which one should not be doing—in battening on to the fact that there is a captive market and that, because there is no elasticity of demand, one can simply go on putting up the fees until it becomes another poll tax on wheels.”

Resolution, the membership organisation for family law solicitors, expressed similar concerns:

“There is no justification for charging the public more than the actual cost (even as done today) of using a legal service to pursue a remedy which is their right under statute.”

The committee agreed, in part. It concludes that the recent increase, “which is approximately double the cost to the courts of providing the service, is unjustified… It cannot be right that a person bringing a divorce petition, in most cases a woman, is subject to what has been characterised in evidence to us as effectively a divorce tax. We recommend that the increase in the divorce petition fee to £550 be rescinded.”

It also says, damningly, “The introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification. Where there is conflict between the objectives of achieving cost recovery and preserving access to justice, the latter objective must prevail.”

Overall, the report is overwhelmingly critical of the impact of the recent and proposed hikes in court fees, not just in the family law sphere but throughout the system, and also the evidence base on which the government’s policy was built. As to what happens next, the government will receive the report and decide what action to take. When Mr Gove finishes his current project, and assuming he remains in charge of the Ministry of Justice afterwards, it is unlikely to make pleasant reading for him. We wait to see what, if any, difference the committee’s report makes.

If you have any questions on what you have read here, or any other aspect of family law or using the family courts, do give us a call on 01223 443333 and ask for an appointment with Tricia, Gail, Sue, Simon or Adam.

 

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