Online Error on Form: E - Storm in a Teacup?
There has been widespread coverage in the press today of the error on the HMCTS
website found in the online version of form ‘E’
which is the 36 page
document used by divorcing parties involved in court proceedings to disclose their assets to the other side and set out their position in regards to settlement.
This document has been refined over the years since its introduction and has been an invaluable tool to solicitors, judges and the parties themselves in dealing with the financial consequences of the breakdown of a marriage. The financial information required
to complete it is wide-ranging and detailed and it can also be adapted to cover all circumstances of a party’s financial situation.
I have often encouraged clients to complete the document using an ’on-line’ version,
and them letting me have their draft for settlement and finalisation before lodging it at court. This will include making sure it’s been completed fully and asking obvious questions such as ‘what further security rather than a mortgage is secured against the matrimonial home’.
A quick look at a copy of the title, received on application from H.M. Land Registry
can often reveal secured debts to which one party may have been oblivious. The form also deals specifically with debts as well. Any family solicitor worth their salt who deals with this work on a day-to-day basis will be well aware of this. It is sadly the case that these days, the arguments are more often about debt and who meets it than assets and how they should be shared.
Any party contemplating such an application will have to carry out a straightforward costs-benefit analysis as to whether or not any difference it might make to their settlement is going to be worthwhile. The court will see the impact of any ‘glitch’ as “an important factor but only one ingredient within a complex equation in determining whether or not the court should in fact make financial provision and property adjustment orders in identical terms to those agreed” .
The number of settlements likely to be re-opened as a result of this error is likely to be tiny. The leading case, (although now over thirty years old)
on re-opening orders suggests that although mistake might be one such factor, the court will look at this in the round. There must also be “Good and substantial grounds that an injustice will be done by holding the parties to the terms of their agreement”. The number of orders and settlements, where this is likely to be the case, given the wide discretion the court has in deciding such cases is likely to be small indeed. It again shows how important it is to seek legal advice when dealing with something as complex and nuanced as the financial consequences of the breakdown of a marriage.