At the moment, a couple planning to divorce, can go on to the Direct.Gov website and download a Divorce Petition. They can then print this document out and send it to the court for the court to issue.
You may have heard about the Ministry of Justice’s (MOJ) plan to roll out over the whole country a ‘smart form’ which can then be completed online and submitted using an online application process. It is currently being piloted in three sites in the UK. When it is finally introduced across the whole country, it should make the process of finalising an uncontested divorce much simpler and certainly the MOJ has promised there will be fewer delays, which are unfortunately all too common under the current procedure.
The difficulty we foresee is that people may assume they do not need any advice and we would be concerned if people chose to use the online process without talking to a qualified solicitor first. There is a risk that people petitioning online, or even using the current process, can put themselves in a financially vulnerable position, simply assuming they can deal with all matters without professional advice.
Completing the divorce process does not finalise the financial aspects of the breakdown of the relationship, this needs to be undertaken in the form of a court order, which is usually a consent order. One of the risks, therefore, is that in a rush to achieve closure, a petitioner may well apply for the Decree Absolute before the financial matters are resolved.
In the event that their ex-spouse then dies, that person would have potentially lost the right to a spousal pension under their former spouse’s pension, or their right automatically to inherit under the rules of intestacy, they may also have to pay inheritance tax which would not have been the case if they were still married.
It could be said that it is in our interests as solicitors to advise that people should speak to a suitably qualified lawyer, however it is precisely because of our specialist knowledge of this area, that we are all too aware of the pitfalls people can find themselves in when they seek advice too late in the process.
We often see people who have already obtained financial court orders before they have seen a solicitor and they can be tied in to an unfair agreement that they cannot escape. This is because financial orders are very difficult and expensive to set aside. It is therefore essential to take advice before any matters are formally agreed between yourselves.
Therefore, if you decide you wish to embark on the process of divorce, you should take advice with regard to resolving the financial issues and any outstanding matters associated with the children to avoid putting yourself in a vulnerable position. It is important to remember that a poor settlement, both financially and in respect of the children, can have serious and long-term consequences for you and your family.
If you do need some timely advice on a family matter, please do give the author Gemma Gillespie a call on 01892 515022
