Sometimes a divorce can appear to be straightforward where there are no assets and everything is amicable; unfortunately, these cases are very few and far between. More often than not, problems are encountered either with the divorce process itself or with the other party.
An experienced family solicitor can take away your burden of resolving any issues and sometimes, it can work out a lot less expensive than attempting to do it yourself and getting it wrong. If you get it wrong, it can take much longer, be more emotionally challenging and often cost more than it would in the first instance had you sought the right legal advice.
Here are some of the common questions and pitfalls for DIY divorce:
Question: We have been married for less than 12 months – is it easier to get a divorce?
Answer: You cannot commence divorce proceedings until you have been married for 12 months. If you want to address financial matters before then, you may wish to consider a separation agreement.
Tip: Regardless of what fact you chose to divorce, the legal process is currently the same – no one fact (adultery, unreasonable behaviour, two years’ separation, five years’ separation or dissertation) is quicker than the other.
Question: I filled in my own divorce paperwork, but the court is not satisfied with the information I have given. What should I do?
Answer: This is a common problem. The law around divorce can be complex and, whilst the divorce petition looks fairly straightforward, if insufficient information is given this can lead to the court refusing to allow your divorce to proceed, for example, your unreasonable behaviour particulars may not be sufficient. You may then need to provide more information or amend your divorce petition, which can attract a fee (subject to income levels) and can even mean starting the process all over again. Whilst mistakes can happen, it is important to try and get it right first time.
Tip: You need to make sure you are meeting the evidential requirements when submitting a divorce on any of the five facts (adultery, unreasonable behaviour, two years separation, five years separation or dissertation.) It is therefore important to make sure you can support these in accordance with what the law requires otherwise your petition may not be allowed to proceed.
Question: I have completed my own divorce. My ex wants to peruse me for my assets. Surely they can’t as we are divorced?
Answer: Incorrect. Unless financial claims are dismissed with a clean break (or the other party has fallen into the “remarriage trap”), claims remain open, which means the other spouse can claim. There is no time limit on a claim being made unless there is a clean break.
Tip: Address financial matters when you divorce. Even if there are no assets, you may wish to obtain a clean break with the aim of preventing claims in the future.
Question: I have filled in the divorce papers and sent them to court. I thought that was it and I would be divorced in a few weeks. I don’t understand the next steps or the forms.
Answer: Even a straightforward divorce can take approximately 9 – 12 months to complete. There is no such thing as a “quickie divorce” in the UK. There is a 4 step process for dissolving the marriage: divorce petition, acknowledgment, application decree nisi and application decree absolute. This does not include any issues regarding finances, which may extend the process. Each stage has its own process that needs completing carefully with the correct information to minimise the chance of the application being rejected.
Question: Is it cheaper to prepare the divorce myself?
Answer: It can be. If you prepare the divorce papers yourself, generally you will just have to pay the court fee (subject to income levels). You will need to complete the divorce petition, application for decree nisi and application for decree absolute. A solicitor will charge to do this. However, you are paying for their experience and knowledge of the legal process, thereby giving you the best possible chance of resolving the matter as quickly as possible without any unnecessary delay by the court if they reject the information you provide or if it doesn’t meet the legal requirements. If you encounter a difficult situation, such as your spouse not returning their acknowledgment, a solicitor can advise you how you might overcome this. Sometimes your case will be eligible for a fixed fee which can be very competitive.
Q: I did my own divorce and I re-married. I did not tick all of those boxes on the back page and I now want to make a claim on my former spouse’s pension. What can I do?
Answer: You may have fallen into the “remarriage trap”. By not setting out your claims or issuing an application for financial remedy before you re-married, you may have forfeited your claim to any assets that are not jointly owned between you and your former spouse.
Tip: To avoid this make sure you obtain legal advice first, ideally before you issue your petition. Ticking those boxes does not mean you are necessarily making a claim now; it means you may wish to in the future.
Question: My spouse won’t co-operate with the divorce/ I don’t know where my spouse is. How do I progress my divorce?
Answer: This is a common problem. To enable a divorce to proceed in the UK, you have to be able to prove the other party has knowledge of the proceedings (in cases of two years’ separation and adultery, you also usually need formal consent). If the other party fails to return the acknowledgment of service, or you do not know where they are, this can become tricky. You may need to apply to serve the application on the other party or apply to proceed without the other party’s co-operation. A family solicitor will have dealt with these situations numerous times before and will be able to help you navigate these applications and explain the options to you.
An experienced family solicitor can help you to try to avoid these pitfalls. Most deal with the divorce and separation process daily. You are paying for their experience and to take the burden away from you. All of the family solicitors at Graysons appreciate how difficult the divorce process can be and will advise you on the right course of action for your case.
If you wish to make an appointment for a free initial consultation as a new client, please contact our experts now.
Author: Bradie Pell, partner and head of the family department.