Can you divorce without a solicitor?
Can you divorce without a solicitor?
It’s a common question. Getting divorced is likely to cost money, and divorce lawyers are expensive, aren’t they?
Why not save money by doing the divorce yourself, rather than paying a lawyer to do it for you?
A deceptively simple answer
The answer to the question is simple: yes, you can get divorced without a solicitor. There is no requirement that you must have a lawyer do it for you, or that you must take legal advice.
But that simple answer is deceptive. Just because you can get divorced without using a solicitor does not mean that it is a good idea. And as we will see, even if the divorce appears to be straightforward, there are traps that you can fall into if you do not take proper legal advice.
In fact, there are so many potential pitfalls involved in doing the divorce on your own that we could not possibly list them all here. Instead, we will just mention some of the more common problems that can arise.
We will do that by breaking down the divorce into its constituent parts: the divorce process itself, sorting out arrangements for any children, and sorting out finances.
At the moment we still have a fault-based divorce system, at least unless the parties have been separated for two years, and they both agree to the divorce. Hopefully, this will soon change, as the new government has pledged to introduce a system of no-fault divorce.
Until then, however, anyone who has not been separated for two years (or five years, if the other party does not consent to the divorce) will have to prove to the court that the marriage broke down as a result of the other party’s adultery or unreasonable behaviour.
But there are pitfalls here. Common ones are unnecessarily naming the ‘other party’ in an adultery divorce (which can make the divorce more complex than it need be), and upsetting the other spouse with unnecessarily serious allegations of their unreasonable behaviour, which could encourage the other spouse to defend the divorce, thereby making things much more complicated.
A lawyer will be able to advise you whether you need to name any other party, and what behaviour allegations are sufficient to prove to the court that the marriage has irretrievably broken down.
Sorting out children arrangements
Sorting out arrangements for any dependent children can often be the biggest area of dispute when a divorce takes place.
One of the reasons for this is that often the parents do not know what sort of arrangements a court would expect in any given situation. If they did know this at the outset, then they would be far more likely to resolve matters by agreement, rather than having to ask the court to sort out arrangements for them. All too often cases go to court simply because one or both of the parents has unrealistic expectations.
An expert family lawyer will be able to advise what arrangements a court would consider to be appropriate and if possible will help you to resolve matters amicably, without having to go to court.
This is the area where there are perhaps the most potential pitfalls. Without proper legal advice parties often have little idea of their financial entitlement on divorce. Are they entitled to maintenance, what should happen to the former matrimonial home (especially when there are dependent children), and do they have a claim against the other party’s pension?
How often has a party walked away from a divorce without their proper financial entitlement?
These can be complex issues that really should not be considered without expert legal advice when filing for divorce.
And even if matters appear to straightforward, for example because there are no dependent children and neither party wishes to make a financial claim against the other, there is still the possible problem of one party making a financial claim against the other, possibly long after the divorce. A lawyer can ensure that this does not happen.
In short, you can divorce without a solicitor, but to do so is to take a risk that could end up costing far more than the solicitor’s fees.