However, does DIY divorce really result in a cost saving - what are the pitfalls and bear traps that should be taken into account?
Firstly, is that old adage, fail to prepare and you prepare to fail. Most online divorces grind to a halt because people did not read through the procedural notes first, or did not pay regard to the online help prompts.
Check first to see whether you can divorce online.
- Have you been married for more than a year? If not you cannot apply for a divorce. However a lawyer can advise on other options that may be available.
- Are you applying for a divorce? (Civil partnership dissolutions, judicial separation and nullity petitions cannot be dealt with online and must be lodged on paper as must divorce cases in polygamous marriages). There are different procedures that must be followed carefully in these cases. A lawyer can help you navigate the procedural minefield to avoid costly mistakes.
- Has your marriage irretrievably broken down? If so, can you prove this by reference to one of five ‘facts’:
- two years’ desertion by your spouse
- two years' separation and your spouse agrees to the divorce
- five years’ separation.
(*adultery has a narrow definition, there are also rules where you are deemed to have 'forgiven' adultery if it you have known about it and have lived with your spouse for more than six months - ask a Birketts' team member if you are in any doubt whether this arises in your case).
Gather together all necessary information.
You will need a jpeg or pdf colour copy of your marriage certificate (make sure your scan/copy is legible and that all four corners of the document are visible). You will need this saved on your device so you can upload it to the portal.
Have your payment card to hand (either a debit or credit card) in order to pay the Court fee of £550.00. If you are on a low income you may be able to apply for Help With Fees. This will need to be dealt with before submitting the divorce petition. This will mean completing a separate form and uploading evidence of your income and savings (if appropriate) to the Court. If your application for Help with Fees is successful, you will be given a reference number that you will need to use when applying for the divorce.
If you are divorcing on behaviour, it is recommended to speak to your spouse about the four or five behaviour examples you will use on the petition. If you are worried as to whether your examples will be too mild for the Court, speak to us, as we may be able to help reword your phrase so it will satisfy the Court yet not upset your spouse.
If divorcing on the basis of separation, make sure that you have all the correct dates. You will be asked to confirm these and to provide a Statement of Truth that the information is correct.
Navigate to the Get a Divorce page on Gov.uk and read through the step by step guides (and re-read them again to make sure that you understand the process). If you need further clarification, seek advice before completing the online form.
Once you are ready, work your way through the questions, carefully and methodically. Once you get to the end, you will be able to review your answers and save them. At that stage, it might be worthwhile printing off the draft petition and having it checked over by a lawyer to ensure that all relevant sections have been completed in the correct way.
Once you are satisfied that you have completed the form correctly, you will have to submit your form online. You will be asked to complete a ‘Statement of Truth’ verifying the contents of your responses to the online questions. Once that has been done, and payment made, you will receive a receipt (complete with a reference number). You will also be able to log online to the Court portal and check the progress of your divorce and view documents.
The Court will go through your online form and check that is has all the information needed before issuing the form and sending it to the other party. The Court will email you once the form has been sent to your spouse. (Your spouse will receive a letter giving them details so they can log in to the Court platform and respond to the divorce application).
The Court Service will send an email once your spouse responds to the divorce application. There are user guides online that outline the next step to be taken – applying for Decree Nisi and explain the online questions that need to be answered. You will be asked to confirm that the contents of your divorce application are true and also to confirm that you wish the divorce to proceed. You will have to confirm your replies by a Statement of Truth.
Once that step has been taken, the documents will be considered either by a legal advisor or a District Judge. They will look at your divorce application, the form completed by your spouse acknowledging receipt of the paper work and also your responses when applying for Decree Nisi. If the Court feels that you have satisfied all the legal requirements you will receive notification of the date the Court will pronounce Decree Nisi (this is usually at least three – four weeks in the future). Unless there is an issue as to who will pay the costs of the divorce, you will not be required to attend Court for the Decree Nisi. If there is an issue regarding costs, take advice in relation to your options and what is cost proportionate.
If the Court feels that you have not given sufficient evidence or have failed to comply with Court rules you will receive notification that your application for Decree Nisi has been refused. It would be usual for the refusal to set out reasons and also what is needed to enable the divorce to proceed. (In some cases the procedural defects could mean that the case has to be dismissed and potentially parties may need to start again). If you have received a refusal we may be able to help get matters on track quickly and cost effectively.
Once Decree Nisi has been pronounced, you will receive notification by email and will be able to download a copy of your decree. This is an important stage in the divorce process as it marks the point when you can make an application for a financial consent order (to approve a financial settlement). Your divorce is not final at that stage.
Once six weeks and one day has passed from the date of Decree Nisi you will be able to apply via the Court platform for Decree Absolute (the final part of the divorce). However, you may wish to take stock at that stage and take advice about finances. Are there good reasons why you should defer applying for the final part of the divorce until financial matters are resolved and incorporated into a Consent Order?
Decree Absolute affects inheritance under a will - Birketts can assist you with drawing up a new Will. Divorce will affect the appointment of a guardian for children – again call us if this is an issue for you. Importantly as Decree Absolute ends your marriage you will no longer be entitled to a spouse's pension from your ex's pension provision. Often couples elect not to proceed to Decree Absolute until financial issues are resolved and dealt with by way of a Court Order.
Please note that Decree Absolute only ends your marriage. It does not deal with financial or children issues. These will need to be dealt with separately. We can help you with that.
If you are planning to remarry, it is important that you have your divorce paperwork checked before you plan a new wedding, as remarriage can bring an end to some financial claims. You might also want to consider, when planning a new wedding, whether a prenuptial agreement can help to protect your financial position. Again, we are happy to advise on the benefit of such agreements.
So, does DIY divorce save money? It might do. Can you lose out by doing it yourself? Potentially yes. You could end up in situation where you are limited on what financial claims you could bring. You might find yourself unable to claim on a spouse’s pension. Having an initial session with a lawyer after you have prepared an online draft (but crucially before you submit the divorce application) can be cost effective in checking for any mistakes and also consider whether you could prejudice your personal financial situation if you apply for a final divorce before financial issues are resolved.
All Birketts’ Family Team are proud to be Resolution members. We all subscribe to a code of conduct to deal with family disputes in a constructive and non-confrontational way. We do not believe in going to Court for the sake of it (or to inflate our fees). We know how destructive Court can be for families. We promote other dispute resolution methods (including mediation, collaborative practice, arbitration, principled negotiations, often using a combination of approaches) and will only use Court as a last resort.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2021.