The Legal Aspects of Divorce
“It’s finally over. John’s lawyer got the holiday cottage and mine got the speedboat and range Rover.”
When do you need a solicitor?
Most people do need a solicitor – but usually later rather than sooner because
Divorce is a huge emotional upheaval and process of change which has many financial consequences and a few legal ones
Involving solicitors too soon risks you incurring large unnecessary costs and causing antagonism which is damaging to your future parental relationship and to your children.
“Too soon” can be when
- The split has occurred suddenly. Neither of you are in an emotional state to be able to take in legal advice, or to make any practical, financial or legal decisions. The bereaved are advised to wait a year before making any big decisions and divorce can be even more traumatic. So let the dust settle and take your time, nothing happens quickly in divorce (even “quickie” ones).
- One partner has been thinking about separating for a long time, but it comes as a shock to the other party. When one is “playing emotional catch-up” solicitors fees escalate because they are not capable of making rational decisions and you can end up in court before you know it – which may not be what either of you wanted.
- Form Es have not been completed. Clients rarely need a solicitor before they have completed their form E as solicitors will not give any concrete advice until they see the full financial information of both parties. However, they can write a lot of letters (at about £50 per letter) whilst getting to that point.
Urgent legal advice
Occasions when someone may need urgent legal advice include when they
- Fear the other parent will abduct their child(ren)
- Are suffering domestic abuse
- Need an injunction to prevent disposal of assets
- Have a choice as to the country their divorce can be started in
The cost of divorce
A divorce can cost anything between £410 (the court fee, just for the divorce itself) and £1m or more in ‘celebrity’ cases. Solicitors’ fees in and around London vary between £200 and £400 per hour, plus VAT; they are less in other parts of the country.
If you go to court, it’s going to cost you a lot of money. Our legal system is adversarial which means you’re getting straight into a fight. That’s a dreadful way to resolve family problems anyway, but as well as damaging your co-parenting relationship (and, therefore, your children), it will damage your wealth, and probably your health. I do all I can to keep people out of court and to find the best way forward for their children and themselves.
You need to consider how much you want to pay in solicitor’s fees and how much you want to do yourself. Even if you are starting to come to terms with your situation it is still an emotional time so if money is not an issue, you may choose to let your solicitor do the paperwork for you. If you want to save money by filling in forms yourself, I can give you as much or as little help as you need to do this.
If you have issues relating to where your children live, or how often they see the other parent, a child psychologist may give you more help than a solicitor, who’s not a child care expert. By all means seek legal advice (and you may want to choose a member of the Law Society Children Panel for this, depending on your situation) but be very wary of going to court, it’s not a good place to think about your children. Our legal system is adversarial and your children need co-operating parents, not adversaries.
Mediation is usually a far better option. And if you really can’t be in the same room as your ex, shuttle mediation is possible, where the mediator goes between the two of you.
Ultimately, most divorcing couples should have a court order for their financial arrangements but all too often people rush to a solicitor too soon, spend all their money getting solicitors to fill in forms they could have done themselves, then have no money left for the crucial legal advice they need at the end.
It’s helpful to have legal advice before and during mediation for financial issues as the mediator won’t give advice, even when they’re a solicitor, and you may find it easier to negotiate when you have a good idea of what you’re entitled to.
Pensions are one area where advice is essential, though sometimes it is better (and cheaper) to get this from a specialist financial advisor. Pensions can be an extremely valuable asset and can be off-set, split or earmarked; you ignore them at your peril.
How it all works
The Legal Structure of Divorce
The divorce petition is the start of the legal journey and the stages for this are:
- Petitioner (applicant) sends petition (application) to the court
- Court sends petition and form to Respondent (other party)
- Respondent returns acknowledgement of service form to court (agreeing to the divorce)
- Court sends a copy of Respondent’s form to Petitioner
- Petitioner makes application for decree nisi (interim divorce order)
- Pronouncement of decree nisi: read out in court, agreeing that your marriage is over, but no-one goes to court unless there is a dispute over costs
- Petitioner waits for a minimum of 6 weeks and 1 day before applying for decree absolute (it’s usually best to get your financial order before applying).
- Court dates and stamps decree absolute, which ends the marriage, and sends to each party, usually within a few days.
The court fee for these proceedings is £410. If possible, agree who is going to pay this before the petition is issued.
Your divorce ends your marriage and enables you to remarry. It does nothing else ie it changes nothing with regard to your children or finances.
The divorce petition is like the peg on which everything else is hung ie once a petition is issued, either party can make other applications under it with regard to:
- Financial and property issues
- Domestic abuse
Ideally, the only application to be made will be for a consent order for financial and property matters. You may come to this agreement between yourselves, in mediation, through collaborative law or by your solicitors negotiating it for you.
The order is complex and will need to be drawn up by a solicitor and sent to the court to be approved by a judge: you will not need to attend court unless the judge is not happy with your proposals. The court fee for this is £50 and the order can be applied for once you have your decree nisi.
There is no legal obligation for you to have a court order for your financial agreement but I would almost always recommend this. Without it, you do not have certainty for the future: either of you could come back and make an application to the court many years later (unless you are the respondent in the divorce and have remarried), or even after the death of one of you.
If you cannot reach agreement for a consent order, an application will have to be made to the court for financial remedy. The procedure is then:
- Directions made
- Form Es exchanged
- First court appointment
- FDR (financial dispute resolution) hearing
- Final hearing
The court fee for these proceedings is £255, which will be a minor consideration compared with the solicitors’ and barristers’ fees involved.
This is a very brief and simple overview of the procedure. You will find a lot more information on the internet.
One of my roles is to help you choose the right legal and/or financial advice at the right time so that you spend the minimum possible on legal fees and maximise the benefit of the time you do need to pay for.
In divorce or separation information is power; it increases your confidence and keeps your expectations realistic. A lot of what you need to get through your divorce is legal information and procedure, rather than legal advice. I make sure my clients understand the significance of the various terms they encounter and guide them through the whole process.
To arrange a free, confidential, 20 minute chat about how I might be able to help you, please email me or call 01932 843434