Thousands of couples who have settled their divorces in the last 20 months may have to re-open negotiations because a critical fault has been found in software used to calculate financial terms.
The Ministry of Justice was urgently investigating the extent of the errors of “Form E” on its website, which have the potential to inflate the financial worth of a wife or husband. It has published an email address – formE@hmcts.gsi.gov.uk – asking anyone who believes they have been affected to contact the department.
Opening page of Form E.
The fact the software had been miscalculating assets since April 2014 was only spotted earlier this month by a family law specialist, Nicola Matheson-Durrant of the Family Law Clinic in Ascot, Berkshire. The MoJ only publicly admitted the problem on Thursday.
It is understood that over the period when the form was producing inaccurate calculations just under 20,000 forms were downloaded. Not all of them would necessarily have been used to work out a division of assets between divorcing couples.
Matheson-Durrant told the Guardian: “Having discovered the fault and advised the MoJ, it became apparent that not a single solicitor, barrister or judge in the whole of the UK had noticed this error. It is such a critical fault. This form has been used in training so it will also have been seen by paralegals, university law departments and the Law Society.”
Matheson-Durrant is not a legally qualified solicitor or barrister, but is a McKenzie Friend, a lay expert who helps litigants.
When she reported the mistake to Her Majesty’s Courts and Tribunal Service, part of the MoJ, earlier this month it admitted to her that Form E was at fault and eventually, after repeated promptings, rectified the software. It made no public announcement about the error.
The HMCTS email did not thank her for spotting the problem but explained, in a defensive tone: “It is not our policy to change dates for technical errors, but to show that a change has happened we have added a code.”
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One particular paragraph, numbered 2.20, which is suposed to produce totals, fails to reflect the minus figure of final liabilities entered earlier on, producing a simple mathematical error. If a party had significant debts or liabilities, they were not recognised or recorded on the electronic form, potentially inflating their true worth. Distorted net figures of applicants’ assets were therefore being produced.
Not all divorcing or separating couples use the online form – some prefer pen and paper calculations – but the impact of the errors could be widespread.
Matheson-Durrant said she began noticing unexpected reckonings earlier this year and initially thought the fault might be to do with her or her clients’ computers. She eventually concluded that the fault lay with the MoJ’s software.
Judgments and payment orders handed down by the family courts – even the highest appeal courts – may have been founded on faulty information.
The discovery comes at a time when the senior judiciary and the justice secretary, Michael Gove, are encouraging the development of online justice as a means of improving courtroom efficiency and making further economies.
Earlier this year an official report backed by the Master of the Rolls, John Dyson, recommended that the UK civil justice system undergo a radical overhaul for the digital age, with the creation of an online court to expand access to justice and resolve claims of up to £25,000.
Matheson-Durrant also pointed out that financial remedy proceedings were currently being farmed out to courts far from couples’ homes in south-east England because the HMCTS divorce unit could not find capacity for Family Hearing Centres closer to home.
Software glitches are not unusual in major government IT projects. Electronic forms have been used by HMCTS for some time but such a mistake is relatively new for the justice system, which is only belatedly moving from paper to computer.
It is extraordinary that such a crucial fault in settling financial disputes in the context of divorce proceedings had gone unnoticed for so long. It could take months to work out the extent and impact of the miscalculations.
Unravelling the damage could take even longer, potentially spurring dissatisfied clients to launch legal action against their own lawyers or the MoJ. There were 114,720 divorces in England and Wales in 2013.
London has been dubbed the divorce capital of the world because of the relatively high awards given to spouses under British divorce laws. It is possible that some recent high-figure settlements obtained by foreign claimants may also have been affected.