Since the introduction of 'no-fault divorce' in April 2022, there has been an increase in DIY divorces, with many couples taking the view that in order to save legal costs, they will submit the application themselves via the online portal. Is this a good money saving idea or can this lead to expensive problems and delay down the road?
Should I speak to a family lawyer first?
If you are considering divorce then it is sensible to seek initial legal advice. Being informed at the outset means you could avoid common pitfalls and save money in the long run. It may also alleviate some initial stress, as you will know what to expect in the process and have the opportunity to ask questions relevant to your personal circumstances.
During an initial meeting with a solicitor, you can be forewarned of the possible problems that may occur. For example, there are two options when submitting the divorce application online – sole or joint. A solicitor will be able to advise on whether there are sound financial or other reasons to issue a sole application rather than a joint one. If a joint application is submitted and your spouse does not engage in the joint process, a solicitor would also be able to give advice regarding the extra steps required to progress the divorce. This could include making separate court applications regarding service and moving from a joint application to a sole application. This can be confusing, expensive and can add delay.
It is also important to know from the outset that even if you change your mind, it is not always possible for a solicitor to then take over on the Court portal halfway through the application. This is because there are two different online portals – one for litigants in person and one for solicitors. In cases where a solicitor does take over, submissions then need to be dealt with on paper, which can lead to further delay. It is therefore vital that you have a clear picture from the start of what is involved and the possible problems that may occur.
With the increase in DIY divorces coupled with the online portal for litigants in person, Birketts has been asked to assist when things have not gone smoothly. The most common situation is when the other party does not engage with the process. There may also be complications when a couple married abroad, have previously started proceedings under the old law and think they have withdrawn them, or have not ticked the correct boxes regarding financial provision (more below). We can advise in the background and help guide you. Any issues with proceedings are likely to add cost, court fees and delay that may well have been avoided if a lawyer had been instructed from the outset.
But the divorce and finances are separate issues...aren't they?
Many divorces also have the associated issue of reaching a financial settlement. Whilst the processes are separate, they are intrinsically linked and an understanding of both is important. The DIY divorce trend can result in couples not seeking any legal advice, which means that not only are they unaware of the divorce application issues but they may not understand the importance of sorting the finances before finalising the divorce. There could be consequences of obtaining the Final Order (which used to be called Decree Absolute) in the divorce before reaching a financial agreement. A couple who have not had legal advice may also not be aware of what a financial agreement could include. In the last four years, there has been a 10% decrease in financial arrangements including pension sharing orders. This suggests fewer couples are taking pension assets into consideration, meaning they could be missing out on possibly one of the largest assets to be shared. Couples may not be aware that only an order sealed by the court is binding, and may think that an agreement between them in writing is sufficient. Pension companies cannot act on an agreement between a couple. A sealed court order and pension sharing annex, both approved by a Judge, will be needed, together with the final divorce order (Decree Absolute) before any pension sharing provision can be implemented.
A solicitor will also be able to explain the importance of completing the divorce application correctly, including ticking the correct boxes on the form to ensure the door is open to obtain a financial order. This simple action could save expensive problems in the future if a financial agreement is not decided upon straight away. If the box is not ticked and the applicant remarries, the financial claims that person can make on their ex-spouse are limited to pensions only. This is known as the 'Remarriage Trap' and you can read more about it in our previous article. Birketts can advise on these cases that may result in losing the benefits applied to married couples, meaning a claim has to be pursued under other civil legislation rather than the family court, again adding to cost and delay.
The Birketts View
Whilst the new 'no-fault' divorce has certainly eliminated many of the archaic problems previously found in the process, the increase in DIY applications comes with its own pitfalls. It is therefore important for anybody considering applying for a divorce to first obtain some legal advice – so they are completely informed of all aspects of the process before preparing an application without assistance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.