Mar 24
Claire Hunter, Associate in the family law team at Raworths in Harrogate, highlights some common risks and misconceptions about DIY divorce.
Consulting a lawyer is viewed as acceptable when buying a house, for example. However, taking legal advice, with the associated costs, is often seen as far less desirable for other life events, such as when a relationship breaks down. Particularly with the ongoing cost of living crisis there seems to be a focus on ‘DIY Divorce’ as a way to cut those costs.
The concept of DIY Divorce isn’t new but it seems to have gained traction following the introduction of the ‘no fault divorce’ regime in April 2022. Divorcing parties can manage the straightforward divorce application online. The ease of processing the actual divorce seems to have tempted more people to try to resolve the wider implications of the breakdown of their relationship between themselves as well, without involving a lawyer.
The rise of the self-help approach is supported by recent research published by the Nuffield Foundation. This highlighted that whilst over 100,000 couples divorce each year, only one third will get a court order to formalise a financial settlement, which leaves a staggering 67,000 couples who don’t. Only 2 in 5 divorcees surveyed by Nuffield Foundation used a lawyer, whether for advice or support, with 12 per cent of divorcees taking no advice whatsoever. It remains to be seen what the long-term impact will be of those choices, given the numerous misconceptions about rights and obligations on divorce.
The most common misconceptions and/or tactical mis-steps that we see include:
Divorce legally ends the marriage but the associated financial claims can survive the final divorce order and theoretically could be activated unexpectedly many years in the future. This could lead to an ex-spouse making a claim against assets generated well after separation. Financial claims should be addressed, resolved and dismissed at the point of divorce to create certainty.
This can lead to unfair results. A good example is pensions which are often seen as confusing, can be overlooked and/or their value underestimated. One party may agree a settlement without fully understanding what they’re giving up. This issue was highlighted in the Nuffield Foundation research: 37% of those surveyed were not aware of the value of their own, or their partner’s, pension pot and there was a lack of awareness about pensions generally, with only 11% of divorcees having a pension sharing arrangement. As pensions are often one of the most valuable assets this is an area where legal advice can ensure nothing is overlooked to help achieve a fair outcome.
Financial claims associated with marriage remain live until they are regulated or dismissed by a court ancillary to the divorce. Any agreement reached between the parties should be recorded formally in a financial consent order and submitted to the court for approval. This creates certainty and maximises the chances of each party receiving what has been agreed. A specialist family lawyer can draft and advise on the agreement.
It’s also worth noting that in England and Wales, pensions can only be shared or adjusted as a result of a court order – schemes won’t implement an informal agreement and this could lead to one party losing out.
There is a lack of awareness about the ‘remarriage trap’. With very few exceptions, remarrying without making financial claims in respect of a previous marriage means those claims are lost. Remarrying or living with a new partner during ongoing financial discussions could also prejudice financial claims. Legal advice can help clarify the implications of remarriage or cohabitation.
Unfortunately, it tends to be media reports of mega bucks, sensational and/or highly acrimonious divorce cases that dominate and cloud the popular view of how financial claims are resolved on divorce. This couldn’t be further from the truth. Court should be a last resort. There are so many other more cost effective and constructive ways to sort things out when a relationship breaks down and a specialist family lawyer should talk through all the options.
Navigating the minefield of divorce, often at a time of emotional upheaval, can be difficult at the best of times. With the many myths and misconceptions about divorce, failing to take legal advice can prove to be a false economy, potentially leading to an expensive exercise to remedy the shortcut many years down the line, if indeed that is possible. In short, DIY Divorce could be a ticking time bomb.
For further information, please contact Claire Hunter who is a member of the Family Law team at Raworths based in Harrogate
Published on 22 March 2024
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