A new practice direction for on-line divorce
As the debate on the EU withdrawal bill rages in the House of Commons I reflect on the latest practice direction to be added to Family Procedure Rules 2010, namely FPR 2010 PD36D – Pilot Scheme: procedure for using an online system to generate applications in certain proceedings for a matrimonial order. PD36D does what it says in the title with the important omission – as I read it – that it does not tell someone who wants a divorce how to access the system so you can operate it. (I may be missing some obvious step, so I apologise in advance to any reader if that is right.)
The PD implies that it comes into operation on 25 January 2017 (is this what para 1.2(e) may mean?), though this is not stated. It represents a first step towards digitalisation of the procedure for dissolution of marriage and civil partnership (though it applies only to divorce at present). It ‘modifies’ two rules and some existing practice directions to do this.
This note is not intended in any way to question the aptness of introducing schemes such as this, to help simplify court procedures (though ‘I, Daniel Blake’, the Ken Loach film, reminds us that not every-one has access to a computer; or if they have, that they are particularly adept at using it. Allowance must be made for that). No, what I am concerned about is that schemes like this are introduced in a way that is lawful (I am not entirely sure that this one is entirely lawful, as I explain); and that when introduced they are clear.
Lawfulness of rule changes
There is a statutory provision (Crime and Courts Act 2013 s 75(4)) which enables the rule-makers – in this case Family Procedure Rules Committee – to make different rules for different areas; so this differential treatment of divorce petitions, by rule-makers, is fine. A practice direction is made by the President of the Family Division with agreement of the Lord Chancellor (Courts Act 2003 s 81; and see discussion in Secretary of State for Communities and Local Government v Bovale Ltd and anor  EWCA Civ 171,  1 WLR 2274).
There is nothing to say a practice direction (which is a lesser statutory species) can alter a rule. (In the 1990s the then Lord Chancellor’s Department provided by practice direction for a selected group of county courts to have an ‘ancillary relief pilot scheme’ to try out a new procedure; but when it was pointed out to them that this could not – or should not – be done by practice direction they introduced proper rules, alongside a paragraph in Civil Procedure Act 1997 to enable pilot schemes to be set up).
Now PD36D says that where it ‘applies’ – though it is not clear from PD36D when it does apply – an ‘applicant [ie a petitioner] must’ complete all sections of the ‘application process set out in the online system’ (modified PD7A para 1.2). It then modifies the present PD7A to say that where the practice direction applies a petition in the ‘form generated by the on-line system referred to in that Practice Direction’ must be used. The problem comes full circle: what ‘form generated’ etc?
There are a number of references to ‘the online system’; but the practice direction makes no attempt to define what that means or to tell the prospective petitioner (‘applicant’) how to get into it.
Clarity and the on-line scheme
The rules must be ‘simple and simply expressed’ because that is what Courts Act 2003 s 75(5)(b) says. I doubt whether this practice direction is lawful (as explained above: the President using a practice direction to alter a rule, which is made by a statutory body); but nor is it ‘simple’ or particularly ‘simply expressed’ in a field where it must be designed to be used by private individuals proceedings without a lawyer. Yes, I know this was drafted over the President’ name, not that of the Committee; but he should adopt the same ‘simply expressed’ criterion, surely.
Apart from not telling a reader where to find ‘the on-line system’, whether it is compulsory or from when it runs, the scheme suffers from a number of further unclear aspects, such as:
- It is designed to operate for divorces only. A divorce under Matrimonial Causes Act 1973 is started by a ‘petition’; yet the practice direction speaks always of an ‘application’ (I know that is what FPR 2010 Pt says; but the Act is the statutory expression which has priority).
- The practice direction refers to a ‘matrimonial order’ when it means a decree of divorce.
- The practice direction says documents required are on the on-line system (para 5.3); but does not say where the system is.
It would have been so easy for the person who drafted PD36A to have said:
- this system applies to all divorces from [a date]
- it is compulsory for such divorces
- the system can be found at [link to site]
- the petition must be accompanied by [documents needed].
Rules amended by a rule
And if I am right that you cannot use a practice direction to alter a rule, then it the rules should have been amended by another rule (which is not an onerous task). Someone may find that their on-line divorce is challenged by an awkward ex-spouse; that an Administrative Court judge will say that yes delegated legislation (ie Family Procedure Rules 2010) cannot be varied in this way; and then a decree (perhaps where papers were not properly served) will be rescinded. If that happens, any financial orders will have to be untangled.
It puts a duty on the adviser who is troubled by the legality of these rules. And I speak only a year or so after two family proceedings practice directions were held by the Supreme Court to be ultra vires the President (or his predecessor) who made them (see eg Wyatt v Vince  UKSC 14,  1 FLR 972).