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With the changes to the law in recent years, as well as the emergence of colloquialisms (common law wife anyone?) and rumours about what is and what is not correct in the world of family law, here are a few things you may not know.
You can deal with your divorce yourself
You do not need a solicitor to get divorced.You may need one later to discuss the associated division of assets and childcare arrangements, but you can undertake the divorce element yourself on the court portal. You can make a single or joint divorce application with your spouse.
You simply apply online, pay the court fee directly to the court and the court will notify you when the next part of the application is due and what further steps you need to take.
Cohabitees do not have the same legal rights as married couples
Somebody commented recently “Oh I know the law has changed and cohabitees have the same rights as married people”. This is a falsehood. There have been discussions and proposals about this being the case in the future but changes are yet to happen.
There has also been the odd piece of case law to give certain cohabitees a very specific right to do very specific things. But cohabitees have nowhere near the number of rights as married people do.
Mediation is not counselling
Mediation is a process which is often used as a method of bringing parties together with an independent mediator to discuss childcare arrangements and/or division of family assets following separation if the parties cannot reach agreement themselves.
Mediation is a voluntary process. If one party chooses not to attend, or the parties do attend but no agreement is reached, the mediator will provide the parties with the necessary form (called a MIAMS form) allowing the parties to issue court proceedings in respect of the issues in dispute.
The mediator’s fees are separate from your solicitor’s fees and the cost will depend on which mediator you choose and how many sessions you have. Some mediators offer remote mediation sessions.
Without a Consent Order, your claims against each other may remain open after divorce
A Consent Order is a document drafted by solicitors which contains the terms of agreement between a divorcing couple in respect of division of family assets. Some people may think that, because of their lack of assets at the point of divorce, they can go without. This is not advisable because applications for financial remedies in the family court can be made by either party at any time in the future, even many years after the divorce is finalised. The leading case on such court applications is Wyatt v Vince. In this case a successful application was made some 30 years after separation and 20 years after the divorce was finalised. You may not have many assets right now but in 10, 20, 30 years’ time, you may have built up savings, investments, a pension. You may have received a redundancy payment or an insurance payout. Or you may have received an inheritance or even won the lottery. To protect yourself from a potential future claim, it is sensible to have a Consent Order drawn up at the point of divorce.
You do not have to go to court to deal with division of family assets on divorce
Some people shy away from starting the divorce process or dealing with the issue of division of family assets, because they fear they will have to go to court in person and have visions of US legal dramas playing out in their heads. This is not so.
There are several ways in which you can reach agreement with your former partner in respect of division of family assets: (1) directly with your partner; (2) through mediation; (3) through solicitor negotiation; (4) various arbitration routes. You simply need to provide your solicitor with details of the terms of your agreement together with any relevant financial disclosure, and they will draft a Consent Order for the court’s approval. The agreed and signed Consent Order is sent to court for approval without anybody needing to attend court.
When reviewing a Consent order, a Judge will consider all the facts of the case and will only approve it if the agreed terms are fair in law. There is no formula for what is fair; each case is different, and your solicitor will advise you if the agreed terms are likely to be approved by the court before drafting the Consent Order.
You do not need a lawyer to attend court hearings
If you find yourself in court proceedings, whether it be in respect of division of family assets or childcare arrangements, and you do not have the funds to pay a lawyer to attend, you can attend yourself and act in person. There is no legal requirement to have a lawyer present at court hearings.
If you attend in person, you will speak directly to either the Judge or the bench of Magistrates, depending on which court you are in. If you instruct a lawyer, the lawyer will address the court on your behalf. Even if you start off in person, you can always instruct a lawyer later. The reverse is also possible. Namely, if after attending court with a lawyer you feel you can manage the rest of the hearings yourself, you can instruct your lawyer to “come off the record”.
If you do decide to attend court in person and you would like to bring someone with you for moral support, you will have to apply to the court in advance of the hearing for a McKenzie Friend. The person in question can be anyone, your mum, your friend, or even a professional McKenzie Friend. A McKenzie Friend cannot address the court on your behalf; only you may do this. The McKenzie Friend can however take notes for you, assist with finding documents you wish to refer to, or just be a second pair of ears and eyes.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles