The pitfalls of DIY divorces
The pitfalls of DIY divorces
As a family lawyer who offers fixed fee consultations at a reduced hourly rate, I hope that those who need legal advice will be able to afford at least a detailed consultation with me to ensure that before you embark on any divorce process you receive advice as the best way forward. However, increasingly I am being approached by husbands and wives who have managed their own divorce using either an online company or information they have obtained on the internet and have progressed a divorce themselves. There is a wealth of very useful information on the internet which can help guide you through a divorce process.
The divorce process itself is not particularly complicated and you can be guided perfectly well using information available online or through an online divorce company. The legal process of a divorce is not necessarily the difficulty. It is the huge emotional trauma faced when moving forward with a divorce that can sometimes make the process more troublesome.
Most people from my experience assume that when they receive their Decree Absolute which is granted at the end of a divorce process that this is the end. They assume that because they are divorced they do not need to go on to think about any other matters. Many have been able to discuss co-operatively the arrangements for their children and their financial matters and one client recently produced to me a detailed typed note which set out an agreement he had reached with his wife ten years ago when they separated and went through a divorce process co-operatively using an online company. That client, and I suspect indeed many others, wrongly assumed that because the divorce had been finalised that the financial agreement he had entered into with his wife as part of the divorce was binding upon them.
This is one of the biggest pitfalls in my experience of progressing with a divorce without seeking legal advice. A divorce is a process which enables your marriage to be dissolved. At the conclusion of a divorce you are no longer married and you receive a Decree Absolute which replaces your Marriage Certificate and formally confirms that your marriage has legally ended. However, unless you have gone on as part of your divorce procedure to apply to the Court for an Order recording any financial agreement you have reached, financial matters between you will remain outstanding. Without a Court Order, irrespective of being divorced, you may still be able to make financial claims against your ex-spouse and your ex-spouse may also still be able to make financial claims against you.
These financial claims can only be dismissed when the Court makes an Order, or if you went on to remarry, your financial claims against your ex-spouse would be dismissed, but if your ex-spouse did not also go on to remarry, their financial claims against you would remain open. This can create a scenario whereby you may have divorced many years ago but you could face a financial claim against you at a later stage.
This can also happen if you entered into a mediation process and discussed proposals with a mediator. Those proposals are not legally binding. You need to go on to take steps to incorporate those proposals in a legally binding document which is a Court Order.
By way of example, I was consulted by a gentleman who separated and divorced from his wife ten years ago. At the time they had reached agreement in mediation as to how their house was to going to be dealt with, maintenance for their son and they intended the proposals they had discussed to be in full and final settlement thereby what is achieving is known as a financial clean break. Unfortunately they did not go on to apply to the Court for an Order approving the terms of their financial agreement which would have made their proposals legally binding. Circumstances changed and the wife’s health and financial position deteriorated. The wife wanted to seek assistance from the husband to alleviate her financial position. I am now assisting the husband as to how best to manage this situation. It may very well be that the parties still agree with their original intentions at the time they divorced ten years ago, in which case an Order can still be submitted to the Court for the Judge to review. However, this may not be an option if their financial positions are so vastly different that a Court may consider the agreement they considered was right ten years ago, may now not be.
It does not need to cost you thousands of pounds to obtain from the Court a financial order and in the long run it can save you significant legal fees if this is an issue that comes back at a later stage to be addressed. If you are going through a divorce and have reached an agreement with your spouse as to how you are going to deal with your financial matters, you can instruct a solicitor to prepare a Consent Order which can be submitted to the Court. Your solicitor is likely to ask you about your financial position and to ensure that you are fully aware of your spouse’s financial position before you ask for your agreement to be made legally binding, but it is your decision as to whether you choose to do so. The Court fee to submit a Consent Order to the Court is currently £50 which can be shared between you and your spouse and you can also decide how you share the cost of instructing a solicitor to prepare the Consent Order for you. In my practice many clients come to me seeking financial Consent Orders and these generally can be drafted to reflect the terms of your agreement without difficulty.
It is understandable why those who have reached agreement and do not necessarily understand that the terms of their agreement are not binding might not contact a solicitor for advice. I hope that having read this blog many more will. Consulting a solicitor who is a dispute resolution specialist and a member of Resolution committing to resolving family matters constructively in this day and age no longer needs to be based on the assumption that any instructions to a solicitor will result in Court proceedings which can be costly, emotionally and financially. Many solicitors like me spend the majority of our day-to-day work assisting couples reaching agreement and moving forward in the best possible way.
Blog written by Clare Kitteridge, a specialist family lawyer and mediator who has been helping families and practising in family law for over 16 years.