It is a fast-changing world that we are living in right now. For most people when they decide to separate and/or divorce it is normally for the first time in their life. It will be another first for most to be living through a pandemic.
We are all experiencing new and unexpected stressors - working from home, nursery, school and university closures, caring for children and home schooling and feeling cooped up all day long at home. The constant media updates, government press conferences and broadcasts about the uncertain situation can feel overwhelming too.
Under the strain, many couples will consider separating. It is important to remember that 1 in 2 marriages already ended in divorce before Covid19, and this might just be the final straw. You are not alone. Many couple may be looking into an online Divorce Petition as they reach the end of the line.
Some couples will consider a 'DIY divorce' – doing it on their own and not seeking legal advice. This article will highlight the pitfalls to be aware of before you embark on this complex legal process.
Online divorce proceedings
In 2018 the new online divorce process was introduced which enables anyone to commence divorce proceedings online, at any time of day. It has always been possible to go through a divorce without professional help but the online system has made the process more accessible to the general public especially the thought of saving legal costs by not instructing a solicitor. However just because it is accessible does not mean it is as simple as it first appears.
Divorce proceedings are a legal process and there are plenty of opportunities to make mistakes, suffer delay and potentially financially prejudice yourself in the process.
So what can go wrong with a DIY divorce?
The Divorce Petition is the first document which is completed and sent to the Court to commence divorce proceedings. You use this form to establish which legal fact you intend to rely on to prove the marriage has irretrievably broken down.
It is an easy document to find and it looks straightforward to complete however beware of the following issues which can easily arise when you start divorce proceedings:
- There are rules which must be adhered to when preparing a Petition and relying upon unreasonable behaviour particulars. Too few or historic examples of a spouse’s bad behaviour and the Court can reject your Petition as the legal standard is not met.
- The Family Law Protocol recommends always providing a copy of the Divorce Petition to your spouse before it is sent to the Court. Not to do so can cause unnecessary conflict between spouses which otherwise could have been avoided. Conflict inevitably will make the process harder, and if you are also co-parenting this could affect the trust in that relationship.
- There are rules which apply when a spouse alleges the adultery of the other. If you file a Petition and the spouse denies those allegations to the Court when they acknowledge service, you either have to apply to the Court for permission to amend the Petition or you have to proceed and evidentially prove the sexual relationship alleged. This is not easy to do, and cohabitation or the existence of a new relationship alone are not sufficient to meet the burden of proof.
- If you cite a period of two years separation as the factual basis of your Petition and your spouse does not consent to the period of time separated that you have stated, or does not acknowledge the proceedings at all, the Court will reject your Petition.
- What if you are the Respondent spouse (the person being divorced) and you openly admit in writing (e.g. text message, WhatsApp message, email to name but a few) that you are committing adultery, or agree to a period of two years separation? This can be used in evidence against you to enable the Petitioner (the person divorcing you) to proceed with the divorce even if you do not want them to
- The same consequence can apply if you admit in writing that you have received the Divorce Petition from the Court to your spouse but refuse or fail to complete the Acknowledgement of Service. The Court can use your written admittance to allow your spouse to progress the divorce proceedings even if you do not want them to.
- What if your spouse makes an application in the Petition for the Court to order you to pay their legal costs but you do not object to paying those costs? It is within the power of the Court to make that Order meaning you can find yourself footing the bill for your spouse’s legal costs of the divorce.
- What if as a Respondent you make the decision to defend the Divorce Petition. There are specific Court rules to comply with including timescales which if you ignore or are not aware of you may lose your right to file a defence. The Court can make an Order for Costs against you for wasting Court time and increasing the Petitioning spouse’s legal costs as well.
Losing out on the finances
It is a common misconception that once the Decree Absolute is ordered by the Court and you are no longer legally married, that the financial claims you are entitled to bring against each other, as a result of your marriage, are automatically dismissed. However, this is not the case.
This means that if you do not reach a written financial agreement voluntarily which is approved by the Court (called a Consent Order) or obtain a Financial Remedy Order from the Family Court within the divorce proceedings those financial claims continue to exist and there can be significant financial consequences.
Financial claims
When you get married you and your spouse have the ability to make financial claims against the other within divorce proceedings for the following:
- Property adjustment orders;
- Lump sum orders;
- Spousal maintenance orders; and
- Pension sharing orders
Those claims continue to exist even after Decree Absolute, and the Court is obligated in the first instance to ascertain what the capital assets and income are of both parties and their value at the time the financial claims are dealt with.
This means that if you win the lottery, receive an inheritance or become a business success and substantively improve your financial position after divorce but before you resolve the financial claims with your spouse, you are required to disclose it. You are at risk of your ex-spouse making a claim against those enhanced assets for all or some of the above financial orders. The reality is that your spouse could end up with a far more beneficial Financial Remedy Order or financial agreement than they might have if this had been addressed at the time of the divorce.
Legal advice and support and advice - where do I start?
It may seem like a good idea to start the divorce process yourself with an online Divorce Petition but think carefully if you have properly researched the legal process and know what is involved (and the risks). Divorce is a stressful time and it takes time and emotional capacity to work through a complex legal process on your own.
No-one knows what the future holds, especially in the rapidly changing times we live in right now. To delay resolving those financial claims is to roll the dice and hope 'lady lucky' is with you. A delay can financially prejudice you As experienced divorce and family law experts, we prefer certainty and we always advise clients not to delay reaching a financial agreement. If mistakes are made the process can be unnecessarily delayed.
Seeking legal advice at a later date may end up costing you more, unravelling what has happened or, even in some cases, re-starting the whole process again. We can provide legal advice and support during a separation or divorce proceedings to fully consider your options, making a well informed decision about your future.
For more information regarding divorce proceedings, visit our Family law page, or contact our expert listed below.
Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.
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