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Changes to the procedure for applying for a divorce in England and Wales mean that all divorces are now applied for online, and as a result, more people are starting to apply for their divorces, often to try and circumvent the legal fees of arranging for a solicitor to do the same.
Economic concerns, including the cost-of-living crisis, will undoubtedly be putting more strain on divorcing couples to try and make their separation achievable in the most affordable way.
Equally, couples who are separating on amicable terms, those who have already been apart for some time, or those with minimal assets to be divided upon divorce may be more inclined to try and facilitate the process themselves, feeling that the potential acrimony of involving solicitors is a cost that can be avoided.
You can apply for a divorce on a sole or joint basis, provided you pay the court fee, which is currently £593 (subject to certain exemptions for those eligible for Help with Fees). It is not required to pay a solicitor to arrange the divorce for you.
Whilst it is positive to see the Family Courts making the system more accessible for individuals wanting to apply for a divorce themselves, the rise in ‘DIY divorces’ means that some couples are getting divorced without taking any legal advice at all, including on matters arising out of the family breakdown such as the finances or child arrangements.
A DIY divorce can be fraught with pitfalls, and it is important for anyone attempting to carry out a DIY divorce to be aware of the risks involved and to seek out legal advice at an early stage before embarking on the process.
Considerations for those divorcing without a solicitor
Couples who facilitate the divorce process themselves must still consider their financial arrangements on divorce, as any agreement reached needs to be protected in a legally binding court order.
Marriage creates financial obligations between parties, and these obligations do not automatically terminate even once a divorce is finalised. Unfortunately, this is often misunderstood by the wider public.
Divorcing couples need to ensure that any financial settlement they reach is recorded in a legally binding financial court order. Whilst many couples agree on private arrangements between themselves, failure to take legal advice too often means that these arrangements are not drawn up in an enforceable way.
Even couples who do not have assets to divide or who have been married for a short amount of time and are financially independent need to obtain a financial order for divorce. For example, a clean break order enables each party to go their separate ways financially whilst ensuring that neither party will have any ongoing financial ties or obligations to the other moving forward.
Failing to obtain a financial order on divorce can have hugely adverse consequences in the future. The other party could fail to adhere to a private agreement reached, and there will be no method of enforcement. Equally, the other party may apply for a financial order many years post-divorce if financial ties have not been legally severed during the divorce proceedings.
Assets such as properties, pensions and businesses generally increase in value over time, and it is important for those going through a divorce to ensure that their spouse’s interest in the same is sufficiently dealt with at the time of the divorce so they cannot claim in the future.
Does it cost less to divorce without a solicitor?
Couples trying to avoid legal costs must be aware of the risks involved.
For those couples who have reached an agreement and want to prepare their own consent order, it is important to be aware that there is no guarantee that a judge will accept the consent order agreed between the parties.
A Judge will scrutinise the draft agreement sought alongside the financial information provided to ensure the agreement is fair and reasonable to both parties. Taking legal advice can avoid the risk and delay of a Judge rejecting the order and avoid the risk of any provisions being overlooked when the agreement is prepared.
Private discussions may also be more likely to result in an unfair agreement towards one party, as many couples are not aware of what their actual entitlement could be if the matter were to be considered by a Judge.
Negotiating independently can be a particular risk for those who have had very limited visibility over the finances during the marriage or those who are not able to negotiate as an equal with their spouse. Some spouses may try and convince their spouse to avoid the cost of legal fees on divorce due to ill-intent, such as if they are aware that their spouse may potentially have greater entitlement to divorce than what they are pushing them to agree to.
Private negotiations can result in assets being overlooked entirely. Pensions are often one of the parties’ biggest assets, yet there is widespread evidence to confirm that they are too frequently overlooked in divorce, particularly for younger couples.
Gender gap studies confirm that this issue disproportionately affects women.
The Nuffield Foundation recently found that at least 60% of divorced women did not discuss pension assets during divorce, often because they did not know that they should. As a result, it has been found that divorced women are substantially less likely than divorced men to be on track for better retirement lifestyles.
Will using solicitors drive us apart?
Using a solicitor to help you through the divorce process does not mean that you are any less capable of reaching a resolution between yourselves. Taking legal advice simply means agreeing to make decisions on an informed basis and in a fair way. This is a complex area of law, and failure to take legal advice can mean potentially agreeing on a settlement that leaves you at a significant disadvantage.
Taking legal advice does not mean going straight to court. Your solicitor will advise you on other out-of-court resolution options to help you resolve matters from your separation. For example, mediation is a forum where a trained mediator will assist and guide you in your own conversations about matters of separation, such as to do with the child’s arrangements or how to divide up your finances.
Mediation can be complemented by both parties having legal advice either alongside or after any mediation sessions.
Resolution is a community of family justice professionals who are committed to helping couples resolve issues of separation in a constructive way.
All of the Myerson Family Team are members of Resolution and are committed to helping those navigating the divorce process to achieve this in the fairest and most constructive way.