Last updated on December 9th, 2020 at 04:08 pm
The increase in court fees and the decline in the availability of legal aid has certainly encouraged a lot of people to turn to a DIY divorce. But at what cost? What happens if it all goes wrong? Who sorts it out and where do people turn for help?
Sometimes a divorce can appear to be straightforward and everything is amicable. Unfortunately, these cases are very few and far between. There are, more often than not, problems encountered either with the divorce process itself or, with the other party.
An experienced family solicitor is able to take the burden from you in 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 is a list 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 which of the five “facts” you chose as the basis for divorce, the legal process is currently the same. No one “fact” (adultery, unreasonable behaviour, two years’ separation with consent, five years’ separation or desertion) 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, such as your unreasonable behaviour particulars not being sufficient, this can lead to the court refusing to allow your divorce to proceed. You may then need to provide more information or amend your divorce petition which can attract a fee (subject to income levels) and can 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 with consent, five years’ separation or desertion.) It is therefore important to make sure you can support the “fact” you are relying on 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 pursue 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 for a claim can be 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 an 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 four-step process to dissolving the marriage. This is divorce petition, acknowledgment, application for decree nisi and application for decree absolute. This does not include any issues regarding finances that may extend the process. Each stage has its own process which needs completing carefully with the right information to minimise the risk of rejection.
Question: Is it cheaper to prepare the divorce myself?
Answer: It can be. If you prepare the divorce papers yourself, you will generally just 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 unnecessary delay or the risk of the court rejecting the information you provide because it does not meet the legal requirements. If you encounter a difficult situation such as your spouse not returning their acknowledgement, a solicitor can advise you how you might overcome this. Sometimes your case will be eligible for a fixed fee arrangement, which can be very competitive.
Question: I did my own divorce and I re-married. I did not tick all of those boxes on the back page of the form 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 lost your right to claim 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 they are. 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 that 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 avoid the various pitfalls. Many solicitors deal with this process on a daily basis. You are paying for their experience and for them to take the burden from you. All our 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.
Author: Bradie Pell, partner and head of the family department.