There has been a significant shift in how divorce is regarded, approached and even applied for in the last few years. We saw the seismic and much-campaigned for move to no-fault divorce in April 2022 and we now have the digitalisation of the divorce application procedure, which is now almost entirely conducted online.
There is no doubt that family law professionals and the public alike have welcomed the fact that the divorce procedure is more simplified, and perhaps has begun to catch up with today’s technology. However, as with any development in the digital age, there are pitfalls to be aware of.
Applying for divorce without legal advice – are there any risks?
The process has become simpler and easier for users. Many couples deciding to separate will choose to apply for a divorce themselves, often as joint applicants and frequently, without first obtaining any legal advice. Understandably, if the decision to divorce is mutual and a couple are on good terms, why would they feel there is any need to see a lawyer, especially when they can do the divorce themselves?
The divorce portal has recently made the news following the discovery that a fault in the court’s online system permitted at least 67 members of the public to apply for a divorce earlier than the law permits. Whilst the error with the system has now been rectified, at a recent hearing, it was discovered that 79 applications for divorce had been wrongly approved. Under the Matrimonial Causes Act 1973, you are unable to apply for a divorce within the first year of marriage – those 79 applications were submitted one day earlier than the law permits. A decision will be received soon on whether those final orders are valid, and if not, there is likely to be significant consequences for those couples who believed they were already divorced.
So, had those applicants taken legal advice before starting their divorce, would they have delayed their applications to the correct date?
Earlier this year, the President of the Family Division refused to rescind a final order for divorce which had been applied for erroneously using the online system. This order for divorce concluded the application and dissolved the marriage. Whilst that error was made by a legal professional, it highlights that even those who are using the systems more frequently than, perhaps, a direct applicant, are not immune to digital mishaps!
Financial arrangements
Whilst divorce lawyers will all be aware that a final order of divorce does not extinguish financial claims, the Fair Shares Report published in November 2023 identified that only one third of divorcing couples use the legal system to reach a financial settlement, with the remaining two thirds negotiating themselves and concluding their divorce, perhaps, without any financial agreement or order at all. A financial order, whether agreed by consent or determined by a court, ensures that any decision on the division of assets, or payment of financial support, becomes legally binding. Obtaining a divorce order and informally separating your assets is not enough to secure a party’s financial future, and without a financial order, financial claims could be pursued at a later date, leaving divorced couples vulnerable to claims and litigation several years on.
Jurisdiction
When applying for divorce, the applicant must be able to demonstrate that the courts of England and Wales have jurisdiction to deal with the application on the basis that they are either living in England, referred to as habitual residence, or that they are domiciled here. This is a complex area of law and requires a comprehensive legal understanding of the case law governing domicile and habitual residence. With more families than ever moving around the globe and dividing their time between different countries, there is much more likely to be another country within which it might also be appropriate to deal with an application for divorce, particularly if there are assets there. If the incorrect box is ticked when the application is made to the English Courts, or perhaps England just isn’t the right place to deal with the arrangements, issuing an application without taking advice could have significant consequences, including costs and delays.
Not having an understanding of the laws which govern divorce and separation in England and Wales could have significant consequences for couples who are going-it-alone when making the decision to divorce. In the current climate, amicable and conciliatory separation is encouraged, not least for the children who will no doubt benefit from a separation without conflict. Understanding your options and taking legal advice before clicking that button can be vitally important. This is not to say that anyone deciding to separate needs to lawyer-up, but taking advice or even using a family lawyer should not be viewed as a hostile step; it can ensure that agreements and arrangements are properly, and legally, concluded.
Taking legal advice before the application is made, or responded to, could save time and money for everyone. The team at Bindmans has considerable expertise in divorce and financial remedy cases, as well as international divorce and children matters. Please get in touch if you would like to speak to a member of the team. For more information about how we can assist with divorce and relationship breakdowns, please see here.
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