Warning on DIY Divorces
Government cuts have led to a steady decline in people seeking legal advice where their relationship has broken down. This has not, unfortunately, led to a similar decrease in the number of people applying to the courts. Applications to the court, particularly in relation to children have increased in recent years, particularly those involving unrepresented parties. In addition, the restrictions created by the coronavirus pandemic in the last 12 months have added to the delays within the court system and it is now taking significantly longer for these cases to come to the courts.
It is now possible to issue divorce proceedings online, and the courts are expected, later this year, to make the process easier by removing the requirement to prove ‘fault’ or ‘consent’ and periods of separation of 5 years or more before a divorce can proceed. The divorce process can be initiated online 24 hours a day. However, people do not always think through the consequences of the divorce.
The financial and children issues are not resolved within the divorce process itself and have to be dealt with separately. Financial claims can remain open indefinitely to either party if they do not remarry and can only be dismissed by a court order within separate financial remedy proceedings. Albeit these may be resolved following an agreement between the parties if submitted in the correct form, with a summary in a prescribed form of the parties’ financial positions. Even a pre-nuptial agreement or separation agreement does not legally end such claims and is not absolutely binding on the court.
Failure to apply for a financial order at the time of the divorce and prior to the granting of a decree absolute (final order) can seriously prejudice one or other of the parties in the future, particularly in the case of long marriages, those involving dependent children or parties with significant differences in earning capacity or financial assets and where there are pensions. The court has to take into account all these things when considering what sort of financial arrangements are appropriate after marriage breakdown. Fairness does not always mean that assets should be split 50/50 or that pre-acquired assets, including pensions, gifts and inheritances, money in trusts or post-separation assets and income should be left out of the equation.
Although there are several alternatives to resolving disputes other than through the court system, such as mediation, arbitration and collaborative law, there will always be cases which can only be properly resolved by making an application to the court. Unfortunately, many people are not aware of the alternatives available to them, or consider that these are also too expensive.
As a result of the cuts, particularly those in legal aid, people are not taking proper advice about their rights and responsibilities and are either reaching badly thought out and prepared agreements which are not backed up with the proper safeguards, or resorting to the court system without proper representation or legal advice on what to expect. This can lead to further litigation and costs which might have been avoided had the parties sought proper advice and representation before agreeing and drawing up a written agreement or before embarking on court proceedings.
In many cases, protracted and expensive court cases can be resolved by the early intervention of an experienced family lawyer. Clients often benefit from getting comprehensive advice on what to expect from the outset. As a result, many cases are resolved without the need to resort to the court process.
In addition, a properly negotiated and drafted agreement can ultimately save costs and ensure future security and peace of mind. Although legal advice, inevitably, does not come cheaply, the costs of having to sort out badly drafted or, in some cases, non-existent divorce petitions or financial settlements can sometimes be considerably higher.
People who do not seek legal advice or representation will normally find the system far less productive and less likely to give them a fair assessment of their dispute. Often, as a result of the animosity between the parties, they are unable to communicate properly or negotiate a reasonable settlement. It is not realistic to expect a judge in a 30-minute hearing to spend time working out the problems that have arisen, the issues and whether the matter is capable of being resolved or how to go about it. This is something that experienced family lawyers will have spent time trying to sort out from early in the proceedings. They are experienced in identifying the relevant issues and communicating these to the court. They will know which documents are relevant and can organise the court bundle to assist the judge.
Often the more organised a party is in preparing and presenting their case, the more likely that the court will find in their favour. Outcomes in children proceedings are often not black and white. The courts have a considerable amount of discretion and decisions are difficult to appeal where a party thinks the judge has got it wrong.
Therefore, failure to take proper legal advice and representation on the consequences of marriage breakdown can often be a false economy. Spouses may leave the marriage without any, or inadequate, financial or legal protection. This might result in further litigation in the future, where inappropriate settlements are subject to appeals and applications for variation, resulting in further costs and stress. At worst, problems may arise many years in the future, at which time the chances of rectifying them may be non-existent.