PRACTICE DIRECTION 41G – PROCEEDING BY ELECTRONIC MEANS: CERTAIN PROCEEDINGS FOR A MATRIMONIAL ORDER OR CIVIL PARTNERSHIP ORDER (NEW LAW)
PLEASE NOTE THIS PD COMES INTO FORCE 1 JUNE 2024
This Practice Direction supplements rule 41.1 FPR (proceeding by electronic means)
SCOPE OF THIS PRACTICE DIRECTION
Introduction and interpretation
1.1 This practice direction provides for the procedure by which, in the circumstances set out in this practice direction, an application for a matrimonial order or civil partnership order may proceed by electronic means via the online system.
1.2 References in this practice direction to “the online system” mean HM Courts and Tribunal Service’s online system to allow for specified applications in matrimonial and civil partnership proceedings to be completed online. The online system is accessible at https://www.gov.uk/apply-for-divorce.
1.3 This Practice Direction comes into force on 1 June 2024.
Types of applications which may proceed by electronic means
2.1 An application may proceed by electronic means where all of the following conditions are met-
- the application is for a matrimonial order which is an order of divorce made under section 1 of the 1973 Act;
- the application is for a civil partnership order which is an order of dissolution made under section 1 of the 2004 Act;
- the application is not unsuitable to proceed by electronic means, as explained in paragraph 2.4;
- in a sole application either party chooses to proceed with the application by electronic means;
- in a joint application, the parties each choose to proceed with the application by electronic means; and
- the application is started in the family court.
2.2 Subject to paragraph 2.3, an application must proceed by electronic means where-
(a) the conditions in paragraph 2.1 are met; and
(b) the applicant is legally represented.
2.3 Paragraph 2.2 does not apply when the online system is not available for use because of-
(a) planned “down time” for system maintenance or upgrades;
(b) unplanned “down-time” because of, for example, a system failure or power outage or some other unplanned circumstance.”; or
(c) in a joint application, the same legal representative is acting for both applicants.
2.4 HM Courts and Tribunals Service may conclude that certain individual or categories of applications are not suitable to proceed by electronic means, and such categories are to be specified in guidance issued by HM Courts and Tribunals Service and published on GOV.UK.
Steps which may be taken by electronic means: outline
3.1 This practice direction enables an applicant or applicants jointly to, in the circumstances set out in this practice direction, take the following steps by electronic means via the online system-
(a) create and start certain types of application for a matrimonial order or civil partnership order;
(b) in respect of such an application-
(i) file documents;
(ii) in the case of joint applicants, file an acknowledgment of receipt;
(iii) indicate willingness to accept service of any documents relating to the application by email;
(iv) accept service of any documents relating to the application;
(v) serve any documents relating to the application (but not serve the application itself);
(vi) make an application for a conditional order; and
(vii) make an application for a final order (and give notice of such application where required);
(c) view an electronic record of the progress of the application.
3.2 This practice direction enables a respondent, in the circumstances set out in this practice direction, to take the following steps by electronic means via the online system in respect of an application for a matrimonial order or civil partnership order which is progressing via the online system –
(a) file an acknowledgment of service;
(b) indicate willingness to accept service of any documents relating to the application (but not the application itself) by email;
(c) accept service of any documents relating to the application (but not the application itself);
(d) make an application for a final order (where applicable); and
(e) view an electronic record of the progress of the application.
3.3 This practice direction does not make provision for a respondent to file an answer via the online system. If an application for a matrimonial order becomes a disputed case (for any reason) then it cannot proceed via the online system and must proceed offline and in accordance with Part 7 FPR.
3.4 This practice direction does not make provision in relation to steps that can already be undertaken by email (via rule 5.5 FPR and PD5B) or in relation to procedures to enable documents to be held electronically by HMCTS via bulk scanning (via PD5D).
RELATIONSHIP BETWEEN THE FAMILY PROCEDURE RULES AND THIS PRACTICE DIRECTION
Application of the Family Procedure Rules 2010
4.1 The Family Procedure Rules 2010 (“FPR”) and supporting practice directions apply to proceedings to which this practice direction applies, subject to the provisions of this practice direction.
4.2 In particular, certain provisions of Part 7 FPR and certain provisions in Practice Direction 7A apply to proceedings to which this practice direction applies. These are set out in the table below.
(It should be noted that this table relates only to Part 7 FPR and Practice Direction 7A, so is not an exhaustive list of all provisions in the FPR and supporting practice directions which apply to proceedings to which this practice direction applies.)
Rule in Part 7 FPR or paragraph in Practice Direction 7A | Subject matter of provision |
Rule 7.4 | Limitation on applications in respect of the same marriage or civil partnership |
Rule 7.2 | Who the parties are |
Rule 7.16 (except insofar as it relates to an application being made for further information, as referred to in Practice Direction 7A, paragraphs 6.1 to 6.5) | Further information about the contents of the application |
Practice Direction 7A, paragraph 3.5 | Other methods of proof of the marriage or civil partnership |
Practice Direction 7A, paragraph 4.1 | Information required where evidence of a conviction or a finding is to be relied on |
4.3 In particular, certain provisions of Part 7 FPR and certain provisions in Practice Direction 7A do not apply to proceedings to which this practice direction applies but provisions of this practice direction apply instead. These are detailed in the table below.
(It should be noted that this table relates only to Part 7 FPR and Practice Direction 7A, so is not an exhaustive list of all provisions in the FPR and supporting practice directions which do not apply to proceedings to which this practice direction applies.)
Rule in Part 7 FPR or paragraph in Practice Direction 7A | Provision of this practice direction which applies instead |
Rule 7.3(1) (statement of reconciliation) | Paragraph 8.1 |
Rule 7.5 (service of application) | Paragraphs 9.1 to 9.3 |
Rule 7.7 (what the respondent must do on receiving the application) | Paragraphs 10.1 to 10.11 |
Rule 7.9 (application for conditional order) | Paragraphs 13.1 to 13.6 |
Rule 7.10, except for paragraph (7) (what the court will do on an application for a conditional order | Paragraphs 14.1 to 14.6 |
Rule 7.19(1)(a) and (b), (5) and (6) making conditional orders final by giving notice | Paragraphs 15.1 to 15.5 |
Rule 7.21 (what the court officer must do when a conditional order is made final) | Paragraph 16.1 |
Practice Direction 7A, paragraphs 1.1 and 1.2 | Paragraph 7.1 and 7.2 |
Practice Direction 7A, paragraph 3.1 | Paragraph 7.4 |
4.4 There are certain steps that cannot be taken by electronic means via the online system and which must be taken offline and in accordance with the FPR and supporting practice directions. (In turn, rule 5.5 and PD5B will apply to determine whether any of the steps can be taken via email.) In particular, the table below sets out the provisions in Part 7 FPR and Practice Direction 7A which cannot apply to cases proceeding by electronic means via the online system.
(It should be noted that this table relates only to Part 7 FPR and Practice Direction 7A, so is not an exhaustive list of all provisions in the FPR and supporting practice directions which cannot apply to proceedings to which this practice direction applies.)
Rule in Part 7 FPR or paragraph in Practice Direction 7A which cannot apply to an application proceeding by electronic means via the online system | Subject matter of provision |
Rule 7.6 | Withdrawal of application before service |
Rule 7.7(5), (6) | Certain steps which may be taken by a respondent on receiving the application |
Rule 7.8 | Amending an application |
Rule 7.10(7) | Inspection of certificate of entitlement to a conditional order and any connected evidence filed |
Rule 7.12 | How the respondent can make an application |
Rule 7.16, insofar as it relates to an application being made for the disclosure of further information, as referred to in Practice Direction 7A, paragraphs 6.1 to 6.5) | Further information about the contents of the application |
Rule 7.17 | What the court must do for the case management hearing |
Rule 7.18 | Applications to prevent conditional orders being made final |
Rule 7.19 (1)(c), (2), (3) | Making conditional orders final by giving notice, joint applications proceedings as a sole application |
Rule 7.20 | Applications to make conditional orders final |
Rule 7.22 | Applications under section 10(2) of 1973 Act or section 48(2) of 2004 Act |
Rule 7.23 | Orders under section 10A(2) of the 1973 Act |
Rule 7.26 | Nullity: interim and full gender recognition certificates |
Rule 7.29 | Medical examination in proceedings for nullity of a marriage of an opposite sex couple |
Rule 7.30 | General rule – hearing to be in public |
Rule 7.31 | Notice of hearing |
Rule 7.32 | Further provision about costs |
Rule 7.33 | Stay of proceedings |
Rule 7.34 | Circumstances in which an order may be set aside (rescission) |
Rule 7.35 | Records of decrees absolute and final orders |
Practice Direction 7A, paragraph 3.2 | Filing without accompanying proof of marriage or civil partnership |
Practice Direction 7A paragraphs 5.1 to 5.4 | Supplemental applications and amendments to applications and answers, where permission is needed |
Practice Direction 7A paragraphs 8.3 to 8.4 | Final orders: need for expedition |
4.5 In addition, there are certain applications referred to in provisions of the FPR or practice directions other than Part 7 FPR and Practice Direction 7A which cannot be made by electronic means via the online system and which must be made in accordance with the FPR and supporting practice directions. In particular, the table below sets out the applications under Part 6 FPR which cannot be made by electronic means via the online system.
(It should be noted that this table relates only to Part 6 FPR so is not an exhaustive list of all provisions in the FPR and supporting practice directions which cannot apply to proceedings to which this practice direction applies.)
Rule in Part 6 FPR in respect of which an application cannot be made by electronic means via the online system | Subject matter of provision |
Rule 6.9 | Request for bailiff service |
Rule 6.16 | Request that the court directs that the application is deemed to be served |
Rule 6.20 | Application for an order to dispense with service |
4.6 Subject to paragraph 4.7, this practice direction supersedes Practice Directions 36ZC.
4.7 Practice Direction 36ZC will remain in force in relation to any application for a matrimonial or civil partnership order commenced under the pilot scheme referred to in that practice direction, and this practice direction (and any that supersede it) will not apply in relation to such an application.
PROCEDURE WHEN PROCEEDING BY ELECTRONIC MEANS VIA THE ONLINE SYSTEM
Security
5.1 HM Courts and Tribunals Service will take such measures as it thinks fit to ensure the security of steps taken in cases proceeding by electronic means or in respect of information stored electronically. These may include requiring parties to cases which are proceeding by electronic means-
(a) to use a unique identification code or password;
(b) to provide personal information for identification purposes; and
(c) to comply with any other security measures,
before taking any of the steps mentioned in paragraphs 3.1 or 3.2.
Providing information requested
6.1 Where proceedings are progressing by electronic means via the online system, each party must at each stage provide all the information requested, including any documents that the online system or the court requires, in the manner specified by the online system or by the court.
Creating and starting an application by electronic means
7.1 Where paragraph 2.1 applies, an application for a matrimonial or civil partnership order can be created via the online system.
Contents of the application
7.2 Where an application for a matrimonial or civil partnership order is created via the online system, the application must be completed according to the detailed guidance contained in the online system.
7.3 The online system sets out the documents which must accompany an application for a matrimonial or civil partnership order and the way in which those documents may be provided (for example, the online system may allow for documents to be posted, or to be uploaded and submitted online with the application).
Proof of validity of marriage or civil partnership
7.4 Where the existence and validity of a marriage or civil partnership is not disputed, its validity will be proved by the application being accompanied, or verified, by –
(a) one of the following –
(i) a certificate of the marriage or civil partnership to which the application relates; issued under the law in force in the country where the marriage or civil partnership registration took place;
(ii) a similar document issued under the law in force in the country where the marriage or civil partnership registration took place; or
(iii) a certified copy of such a certificate or document obtained from the appropriate register office; or
(iv) HM Passport Office’s “Life Event Service” (for marriages and civil partnerships that have been registered in England and Wales since 1 January 2011); and
(b) where the certificate, document or certified copy is not in English (or, where the court is in Wales, in Welsh), a translation of that document verified by the translator and certified by a notary public or authenticated by a statement of truth.
Submitting the application
7.6 An application for a matrimonial order or civil partnership order created on the online system is submitted to the court via the online system. Once submitted in this way, the proceedings are started when they are issued by the court.
Timing
7.7 An application for a matrimonial order or civil partnership order that is submitted via the online system is lodged with the court on the date and at the time that HMCTS software records the application as received, provided that the application is subsequently issued by the court.
7.8 A document, other than an application for a matrimonial order or civil partnership order, that is submitted via the online system is filed with or otherwise received by the court on the date and at the time that HMCTS software records the document as received.
7.9 When an application for a matrimonial order or civil partnership order is received via the online system, an acknowledgment of receipt is automatically sent to the applicant. This acknowledgment of receipt does not constitute a notice that the application has been issued.
Statement of reconciliation
8.1 Where an applicant is legally represented, the legal representative must complete and provide with the application, in a manner specified in the online system, a statement certifying whether the legal representative has discussed with an applicant the possibility of a reconciliation and given an applicant the names and addresses of persons qualified to help effect a reconciliation.
Service of an application for a matrimonial order or civil partnership order
9.1 After an application for a matrimonial or civil partnership order made via the online system has been issued by the court, a copy of it must be served on a respondent.
(Rule 6.5 FPR provides for who is to serve an application; where the applicant serves the application, rule 6.6A and 6.41A provide a time limit of 28 days from the date of issue for taking the prescribed steps to serve the respondent)
9.2 When the application for a matrimonial order or civil partnership order is served on a respondent, it must be accompanied by-
(a) details of what steps to take to respond to the application; and
(b) a notice of proceedings.
9.3 Where the parties have made a joint application for a matrimonial or civil partnership order the court must send a copy of the notice of proceedings to both parties.
What the respondent should do on receiving the application
10.1 On receiving an application for a matrimonial order or civil partnership order, the respondent must file an acknowledgment of service.
10.2 A respondent may choose whether or not to use the online system to complete and file an acknowledgment of service. Details of how to respond online will be sent to them in accordance with paragraph 9.2(a).
10.3 If a respondent chooses to use the online system, the acknowledgment of service must be filed within 14 days beginning with the date on which the application for a matrimonial order or civil partnership order was served.
10.4 If the respondent chooses not to use the online system, they must contact HM Courts and Tribunals Service (using the details provided in accordance with paragraph 9.2(a)) to request a paper form for acknowledging service. If the respondent then files that paper form, the further stages of the proceedings will be completed by the respondent under Part 7 of the FPR and not under this Practice Direction.
10.5 Where paragraph 10.4 applies, the acknowledgment of service must be filed within 14 days beginning with the date on which the respondent received the paper form for acknowledging service. The amended deadline for filing the acknowledgment of service will be notified to all parties.
10.6 Paragraphs 10.3 and 10.5 are subject to rule 6.42 FPR (which specify how the period for filing an acknowledgment of service is calculated where the application is served out of the jurisdiction).
10.7 The acknowledgment of service completed by the respondent must-
(a) include the respondent’s address for service of further documents in the proceedings; and
(b) where it is filed by the respondent, indicate whether or not the respondent intends to dispute proceedings.
(Should the application for a matrimonial order or civil partnership order become disputed case it will cease to proceed by electronic means via the online system and will instead proceed offline and in accordance with Part 7 of the FPR).
10.8 The acknowledgment of service must include a statement of truth. Where the acknowledgment of service has been completed via the online system, the name of the person giving the statement of truth must be recorded against it.
10.9 Subject to paragraph 10.10, the name of the person giving the statement of truth must be that of the respondent or the respondent’s legal representative.
10.10 Where the respondent completes an acknowledgment of service via the online system-
(a) an acknowledgment of receipt is automatically sent to the respondent via the online system;
(b) the application is deemed to be served; and
(c) a notification must be sent to the applicant via an email attaching a link from which the acknowledgment of service may be accessed and downloaded.
10.11 Where a notice of proceedings is sent to joint applicants as set out in paragraph 9.3, each joint applicant must acknowledge receipt of such notice on the online system within 14 days.
Service by email (documents other than an application for a matrimonial order or civil partnership)
11.1 Paragraph 9.1 makes provision in relation to service of an application for a matrimonial order or civil partnership which this practice direction applies. Paragraphs 11.2 to 11.5 make provision in relation to service of documents other than such an application in cases which are proceeding by electronic means via the online system.
11.2 Practice Direction 6A makes provision about methods of service, including by email. That practice direction applies to proceedings to which this practice direction applies, subject to paragraphs 11.3 to 11.5.
11.3 Where paragraph 4(2)(a) of Practice Direction 6A applies, confirmation given on or via the online system that a party is willing to accept service by email, and stating the email address for such service, is to be taken as sufficient written indication for the purposes of paragraph 4.2(a) of Practice Direction 6A, in addition to the means of confirmation specified in paragraph 4.2(b) of Practice Direction 6A.
11.4 Where a party has indicated willingness to accept service by email (as set out in paragraph 11.3), service of a document may be effected by the court sending the party an email, to the address given for service by email, containing a link from which the document may be accessed and downloaded.
11.5 References in paragraphs 4.2 to 4.5 of Practice Direction 6A to service of a document by email include service by the court acting in accordance with paragraph 11.4 of this practice direction.
Amendment of an application for a matrimonial or civil partnership order
12.1 It is not possible to amend an application for a matrimonial order or civil partnership order via the online system. Any amendments required will proceed under FPR rule 7.8 and PD7A.
Application for a conditional order
13.1 An application may be made by the applicant(s) to the court, using the online system, for it to consider the making of a conditional order in the proceedings at any time after the end of the period of 20 weeks from the date on which the application was issued provided that-
(a) the time for filing the acknowledgment of service has expired and no party has filed an acknowledgment of service indicating an intention to dispute the proceedings; and
(b) in any other case, the time for filing an answer to every application for a matrimonial or civil partnership order has expired.
13.2 An application under paragraph 13.1 must, if the information which was required to be provided by the application is no longer correct, set out particulars of the change.
13.3 If no party has filed an answer disputing the making of a conditional on another party’s application for a matrimonial or civil partnership order, then an application under paragraph 13.1 must include a statement-
(a) stating whether there have been any changes in the information given in the application;
(b) confirming that, subject to any changes stated, the contents of the application are true; and
(c) where a paper acknowledgment of service has been signed by the other party to the marriage, confirming that party’s signature on the acknowledgment of service.
13.4 A statement under paragraph 13.3 must be verified by a statement of truth.
13.5 Where an application under paragraph 13.1 is received via the online system, an acknowledgment of receipt is automatically sent to the applicant.
13.6 An application under paragraph 13.1 may be made by via the online system—
(a) by the applicant; or
(b) in a joint application, by both parties; or
(c) in a joint application that is to proceed as an application by one party only, by that party.
13.7 Where the application is made under paragraph 13.6(c) on the online system, a notification of the same is served on the other party to the marriage or civil partnership.
What the court will do on an application for a conditional order
14.1 Paragraphs 14.2 to 14.6 apply where an application is made under paragraph 13.1 in relation to an application for a matrimonial order or civil partnership order that is progressing on the online system.
14.2 The court must in a standard case, if satisfied that the applicant is or applicants are entitled to a conditional order, so certify and direct that the application be listed before a judge for the making of that order at the next available date.
14.3 If the court is not satisfied that the applicant is or the applicants are entitled to a conditional order, it must direct–
(a) that any party to the proceedings provide such further information, or take such other steps, as the court may specify, or
(b) that the case be listed for a case management hearing.
14.4 The court may, when giving a direction under paragraph 14.3 direct that the further information provided be verified by a statement of truth.
14.5 If the applicant has applied for costs, the court may, on making a direction under paragraph 14.2 make directions in the costs application.
14.6 The court must not give directions under this paragraph unless at the relevant time it is satisfied –
(a) that a copy of the application for a matrimonial order or civil partnership order (including any amended application) has been properly served on each party on whom it is required to be served; and
(b) that the application for a conditional order was made at a time permitted by paragraph 13.1.
(In this paragraph ‘the relevant time’ means the time at which the court is considering an application made under paragraph 13.1).
Making conditional orders final by giving notice
15.1 Unless rule 7.20 applies —
(a) a party in whose favour a conditional order has been made may give notice to the court, using the online system, that they wish the conditional order to be made final;
(b) both parties in whose favour a conditional order has been made may jointly give notice to the court, using the online system, that they wish the conditional order to be made final.
15.2 Where the conditional order is in favour of both parties, but the application is to proceed as a notice by one party only, required notice under 7.19(2), filing of a certificate of service under 7.19(3) and the application under 7.19(c) cannot be made on the online system and must be made offline.
15.3 Subject to paragraph 15.4, where the court receives a notice under paragraph 15.1 it will make the condition order final if it is satisfied that –
(a) no application for rescission of the conditional order is pending;
(b) no appeal against the making of the conditional order is pending;
(c) no order has been made by the court extending the time for bringing an appeal of the kind mentioned in sub-paragraph (b), or if such an order has been made, that the time so extended has expired;
(d) no application for an order of the kind mentioned in sub-paragraph (c) is pending;
(e) no application to prevent the conditional order being made final is pending;
(f) the provisions of section 10(2) to (4) of the 1973 Act or section 48(2) to (4) of the 2004 Act do not apply or have been complied with; and
(g) any order under section 10A(2) of the 1973 Act has been complied with.
15.4 Where a notice is received via the online system more than 12 months after the making of the conditional order it must be accompanied by an explanation why the application has not been made earlier.
15.5 Where a notice referred to in paragraph 15.1 is received via the online system, an acknowledgment of receipt is automatically sent to the applicant.
What must happen when a conditional order is made final
16.1 When a conditional order is made final in a case proceeding via the online system-
(a) the date and time on which the conditional order is made final must be recorded on the online system; and
(b) a notification must be sent to each of the parties that the conditional order has been made final.
Statements of Truth
17.1 In paragraphs 17.2 and 17.3, “document” means anything in which information of any description is recorded.
17.2 Where a statement of truth is included in any document completed or generated using the online system-
(a) the document must include the name of the person who the online system requires to give the statement of truth recorded against the statement of truth; and
(b) the court may require the party to produce a copy of the document containing the signature of the person referred to in sub-paragraph (a) at a later date.
17.3 Practice Direction 17A applies to a statement of truth given in a document completed or generated via the online system, except that-
(a) paragraphs 1.5 and 2.3 of Practice Direction 17A do not apply;
(b) in the heading to paragraph 3 and in paragraphs 3.1, 3.7, 3.8 and 3.10 of Practice Direction 17A, references to “sign”, “signs”, “signed” and “signing” are to be read as references to the name of the person being, or having been, recorded against the statement of truth included in the document completed or generated via the online system;
(c) paragraph 4.3(a) is substituted with-
“(a) that the content of the document completed or generated via the online system has been read to the person before completion of the statement of truth required by the online system;”;
(d) paragraph 4.3(e) is substituted with-
“(e) that the person confirmed in the presence of the authorised person that it was their belief that the contents of the document completed or generated via the online system were true.”; and
(e) the Annex is substituted with-
“Certificate to be used where a person is unable to read or sign a document completed or generated in matrimonial or civil partnership proceedings to which the online scheme in Practice Direction 41G applies.
I certify that I [name and address of authorised person] have read the contents of the [name of document completed via the online system] and the statement of truth to the person whose name is recorded against the statement of truth, who appeared to understand (a) the [name of document] and approved its contents as accurate and (b) the statement of truth and the consequences of making a false statement, and orally confirmed that this was the case in my presence.”.