05 Sep Doing your own divorce? Why you still need to take legal advice
As you may be aware, a new system of no-fault divorce was introduced on the 6th of April. And it seems that the idea of divorcing without blame is popular.
Figures recently published by the Courts Service showed that 12,978 new divorce applications were issued in April, compared to 8,729 in the same month last year.
Part of its popularity may be due to the comparative simplicity of the new system. No longer is it necessary to prove that the marriage has irretrievably broken down, for example by showing that your spouse has committed adultery or behaved unreasonably. And no longer is it possible for the other party to defend the divorce.
In fact, with the advent of no-fault divorce and the still relatively new online divorce system, it has never been easier to do your own divorce, rather than instruct a lawyer to do it for you.
And many people are doing just that. The urge to save the cost of instructing a lawyer is strong, especially in these difficult economic times.
But that does not mean that you don’t still need to take legal advice when you get divorced.
Divorce finances are not so simple
It is important to understand that no-fault divorce does not include the divorce settlement, or sorting out financial arrangements after the divorce.
And everyone needs to have their divorce settlement sorted out, even in the most straightforward of cases.
But sorting out a divorce settlement is not a simple matter that anyone can do without a lawyer.
The first point is that the divorce settlement must be reasonable. But what is reasonable? There are no fixed rules to work out what anyone is entitled to on divorce. Each case is decided on its own facts, by considering all of the relevant circumstances of the case. And often people believe that certain circumstances are relevant when they are not.
And entitlement isn’t just a question of how much each party should receive. Consideration should also be given to what assets should be included in the settlement. Should it, for example, include assets that one party owned prior to the marriage? Should it include assets that one party inherited during the marriage? And what about assets acquired after the marriage?
And dealing with some assets can be very complicated. Perhaps the prime example of this is pensions. Deciding how they should be dealt with is a matter for experts, both legal and financial.
And when you have worked out what you are entitled to you still have to agree it with the other party. And if you can’t agree then of course you may have to take the matter to court – something you would not want to do without a lawyer.
And even if you can agree matters with your spouse you still need to have the agreement put into a court order, to ensure that it is final. But this involves drafting the order – something that should certainly be done by an expert lawyer.
In short, anyone going through a divorce should still take legal advice upon the financial settlement. If they do not do so then they could be missing out on their entitlement, and creating problems that may cause considerable further expense down the line.
Don’t leave it too late
There is one last point to bear in mind. Once started, the divorce timetable can appear to be fixed in stone: wait twenty weeks before applying for the conditional order, then wait another six weeks before applying for the final order. What could be more straightforward?
But anyone proceeding to a final divorce order without first taking advice can fall into a trap. They may find that they have lost out financially by not getting the financial settlement sorted out before applying for the final divorce order.
The moral is simple: by all means, deal with your divorce yourself if you feel able to do so, but make sure you take legal advice upon the financial settlement, as soon as possible.