Sadly, many couples will file for divorce online – but without much consideration as to the outcomes. In this analysis, Lisa Payne, Chartered Legal Executive at Wilsons Solicitors, explores the key considerations and potential risks that could befall unsuspecting couples when filing for a divorce online.
From January 2020, HMCTS started to phase out regional divorce centres, having introduced an online divorce system. Since then, almost all applications for divorce are made online, either by family lawyers on behalf of their clients or by divorcing parties themselves.
Whilst paper applications can still be sent to the Court by post, a quick internet search of ‘divorce application’ will quickly take you to gov.uk, encouraging parties to apply online.
There is no requirement to seek legal advice beforehand. In contrast, it is suggested on gov.uk that marriage counselling is sought. Whilst this is of course important and should be a consideration before any application for divorce is made, the implications of not seeking legal advice beforehand are far more costly.
An application can be made from the comfort of your own home, or out and about even on your phone. At the click of a button, the process begins. The applicant needs only basic information and means of payment to cover the £593 Court fee.
Since the Introduction of the Divorce, Dissolution and Separation Act 2020, which came into force on 06 April 2022, you can now apply for a divorce via a sole application, meaning you do not need to consult your spouse beforehand, and further, a divorce can no longer be defended unless there is a legal argument such as jurisdiction, or a question of the validity of the marriage.
It follows that within minutes, an application for divorce can be made without any consideration of the next steps and the impact. The Court can process the application within days and once they do, and it has been issued, it will be emailed to the spouse who may have had no prior warning. This can be devastating for all involved.
Once the application is issued by the Court, you can only amend or withdraw it by consent with your spouse, or with permission from the Court – both will incur delay, and most likely legal fees as advice will need to be sought, not to mention embarrassment.
The above is assuming an application is made by one party to the marriage in haste, but of course it may not, and it could be a carefully considered application by one or both parties via a joint application. If this is the case, there are many positives to the online application.
Let’s assume the parties are amicable, make the application together, do what is required of them both to see the application through to the granting of the Final Order, which dissolves the marriage. They congratulate themselves on an amicable divorce and begin their next chapter.
They wonder why there was ever the mention of taking legal advice. My fellow family lawyers are all wincing at what we know will come next…
The biggest and most financially damaging risk of not seeking legal advice before making an application for divorce, or responding to the same if your spouse has made the application, is not in relation to the mechanics of the divorce, as most family lawyers will encourage parties to deal with such themselves alongside their advice, to assist with keeping legal fees to a minimum, it is in respect of resolving the finances of the marriage.
There is a worrying misconception that being divorced means a ‘line is drawn’ and the finances are ‘sorted’ and you can move on with your life independent of your spouse. This is incorrect.
A divorce, and the making of a Final Order, ends the marriage. It does not address the financial claims that both parties can bring by right of their marriage, even after divorce.
Think of the divorce as no more than an entry on the timeline of the relationship. For example, parties could be divorced for 10 years, and it would still be open for an ex-spouse to bring a financial claim against the other, if the parties did not obtain a financial order dismissing their financial claims against each other, which is independent of the divorce process.
Many of my clients have said to me, ‘we don’t own property together, we have no savings, there’s nothing to sort’. My response is ‘that may be the case now, but if you win the lottery in a few years, your ex-spouse can bring a claim against the win’. This normally results in a silence, and then instructions to prepare the Court order that dismisses all financial claims, in other words, ‘the clean break’.
Whilst the lottery example is used for effect, the day-to-day reality is that it won’t be a lottery win, but it will most likely be a wife, for example, realising that post-divorce, she no longer has the benefit of her ex-husband’s income and is struggling to fund her day to day living, as she gave up her career to look after their children. Their now adult children tell her how successful their father is, and the income he is receiving. Or the wife who is nearing retirement and realises she has almost no pension provision, but recalls that her husband had a very large pension when they were married. How do clients avoid being in this situation?
Seeking advice from a family lawyer at an early stage, before divorce proceedings begin ensures that the emotions of the divorce are handled, time is used productively, advice is given as to the likely outcome of the finances and steps taken to reach an agreement and importantly, a Financial Order is obtained to ensure such agreement is binding and enabling both parties to move forward with their next chapter, independent of the other.
Early advice is an investment.
