You will no doubt have heard about the new no fault divorce process which has thankfully replaced the old system which required one spouse to commence proceedings by apportioning blame – hardly conducive to keeping things amicable! The new process is far more straightforward, with neither spouse having to be named as the party responsible for the breakdown of the marriage.
The system is now fully accessible online via the gov.uk portal. Many couples are opting to go it alone with a DIY divorce and are now even able to apply together. Separating couples working together through this difficult time is without doubt a positive step, but it is still crucial to take advice from a solicitor right from the outset. Although the divorce process itself may be simple, dealing with the finances tends to be more complicated, and unless any agreement you reach is recorded in a legal document and approved by the court, it will not be legally binding and could be unravelled at any point in the future.
Below we answer some common questions about the new no fault process and will deal with the financial side of things in more detail:
Can I do a no fault divorce myself without a solicitor?
The simple answer is yes you can. You can apply online as a sole applicant, or as a joint applicant with your spouse. The process is much more straightforward than before. You don’t have to list unreasonable behaviour or wait two years from separation, and it’s very hard for the other party to contest the proceedings (except in certain very limited circumstances).
That said, although the process is much improved, if any mistakes are made during the application, it can be tricky and extremely time-consuming to rectify those errors and so we always recommend instructing a solicitor to assist with the process.
Instructing a solicitor doesn’t have to mean polarised positions and going to court to do battle. At Scott Bailey, our family solicitors are all members of Resolution, a national organisation of professionals committed to resolving matters in the most constructive and non-confrontational way. There are many dispute resolution processes offered to avoid a court battle.
How much will the new no fault divorce process cost?
It is posible to apply for a divorce online via the government website for which there is a court fee payable of £593 (for those on low income there may be a concession for all or part of the fee). At Scott Bailey we can of course deal with the entire process for you and would give an outline of our fees for this service at our first meeting.
Can’t we just agree the finances between us?
Again, the simple answer is yes you can. However, unless your financial agreement is approved by the court in the form of a Financial Order, you remain at risk of future litigation, with your agreement potentially being pulled apart if one of you changes your mind later on or if circumstances change. We strongly urge anyone considering divorce to conclude financial matters with a Court Order as this is the only way you can ensure your agreement will be enforceable and legally binding and any other potential claims you would otherwise have had against each other for periodical payments, property transfer orders, capital, pension sharing or attachment and claims against each other’s estates on death will be dismissed.
When should we sort out the finances?
The court won’t be able to consider your Financial Order until the Conditional Order of divorce (which used to be called Decree Nisi) has been pronounced. That doesn’t however stop you from talking about the finances or from reaching an agreement beforehand. In fact it’s helpful if you can have these conversations early on and get the ball rolling with any alternative dispute resolution method you might be using, such as mediation, so that once the Conditional Order has been pronounced, the agreed Financial Order is ready to be filed at court.
What happens if we apply for the Final Order BEFORE we have sorted out the finances?
We always recommend that couples hold off applying for their Final Order (Decree Absolute) until financial matters have been settled with a Financial Order. Currently, one common issue with the new system is that people are concluding their divorce by applying for the Final Order as soon as they are prompted to do so by the Court, but without having resolved financial matters first. This could have huge pension and tax consequences depending on your circumstances. For instance, from 5 April 2023, separating couples will have until the third tax year from separation before any Capital Gains Tax would become payable on the transfer of any property between them, provided they have not divorced before the transfer.
While there is some advice available on the www.gov.uk online divorce portal about resolving finances when you apply for divorce, please bear in mind that this advice is limited and is not tailored to your individual circumstances as it would be if you speak with a solicitor.
“While the system is now far improved with the no fault process, people need to keep in mind that the divorce itself doesn’t conclude financial matters, even if those are already agreed between you. The court isn’t there just to deal with contested proceedings on divorce. Financial arrangements which have been agreed on divorce also need the court’s approval before they can become legally binding. It is therefore vital that anyone getting divorced obtains advice about what they need to do to resolve financial matters.”
Olivia Le Masurier, family solicitor at Scott Bailey
When it comes to getting divorced, you need advice you can rely on. Our team of expert divorce solicitors have extensive experience handling all types of divorce and will be able to guide you through the process.
For a fixed fee initial consultation, contact us today.
