With all the attention given to the chancellor’s sugar tax you could be forgiven for not noticing the lord chancellor’s divorce tax this week. But the latter is much more pernicious.
Manufacturers can avoid George Osborne’s tax by reducing the sugar content of their drinks. That, after all, is its aim. But nobody who wants to dissolve a marriage can avoid Michael Gove’s tax. The courts for which he is responsible in England and Wales have a monopoly on ending marriages.
The Ministry of Justice estimates that the average cost of dealing with an uncontested divorce application is £270. The current court fee is £410. Under a draft order approved by the House of Lords on Tuesday and by the Commons in January, it will go up to £550, an increase of around 35%. The increase takes effect on Monday. It is little consolation to say that the coalition government had been planning to raise it to £750.
Will this discourage married couples from divorcing? We simply do not know. The Ministry of Justice thinks not, but family judges regard the government’s research as “unsafe”. The judges were also worried that an increased fee that acted as “a disincentive to couples seeking a timely dissolution of their failed marriage also acts to expose a significant cohort of vulnerable children to emotional and, potentially, physical harm”.
And will the higher fee deter couples from marrying in the first place? In my view it is bound to – even though a wedding can cost as little as £46. And does that matter? Certainly, because marriage gives the weaker partner greater protection than cohabitation.
But times are hard, and taxes are inevitable. It’s a captive market. What’s wrong with charging more for a divorce than it costs to provide?
James Munby, president of the high court family division, gave a robust answer to that question when it was put to him by the Commons justice committee in January.
“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.”
And then the judge made an even more powerful point. Next year, the courts will begin piloting online divorce. That will provide dramatic savings for the courts and tribunals service. Buildings will be sold off and staff numbers will go down. Couples who knew they were paying twice the cost price for an old-fashioned divorce would ask why, as Munby put it, they should “now pay 100 times as much as the cost to get a digital divorce”.
Speaking against the proposals in the House of Lords on Tuesday, Lord Beecham said the Ministry of Justice was “seeking to profit from a situation where the parties are in an inherently unhappy position”. The fees disproportionately discriminated against women, who made up two-thirds of those initiating divorce proceedings.
The Labour peer acknowledged that people whose earnings were roughly at the level of the national minimum wage could apply for fee remission – although without legal aid they might have difficulty in coping with the paperwork. But Lord Faulks, the justice minister, insisted that fee remissions would be helpful to people who might otherwise be deterred from ending a marriage. He pointed out that the extra money raised by the increased fees would help to support the courts service.
Only one other peer bothered to speak in the debate, which did not even fill the hour allocated to it. Lord Brown of Eaton-under-Heywood pointed out that it was the second time the government had used powers granted by parliament in 2014 to set court fees above cost. The former law lord noted that the 2014 act had effectively overruled the provision in Magna Carta – still on the statute book – that justice was not to be sold to anybody.
In Beecham’s view, the government order increasing fees for some civil claims as well as divorce reflected “a cynical disregard of a kind that makes the title of the Ministry of Justice look as credible as that of George Orwell’s Ministry of Truth”.
Whether or not that’s fair, I certainly prefer a tax on sugar to a tax on bitterness.