Why a ‘good divorce’ does not mean leaving out the lawyers

In April 2022 the law radically changed regarding the way in which separating couples could apply for a divorce.  In a much requested and hailed reform, the ‘No fault divorce’ was born.  Rather than apportioning blame on one party to enable a divorce to be issued before a 2 year separation period, now both parties can submit the application together should they wish, the idea being that this should remove the heat, blame and high conflict, and therefore allow parties to move on in a more harmonious way.

The new divorce laws has led to many more parties deciding to issue their divorce petitions without the assistance of lawyers – “it’s just a quick bit of form filling” after all.  The difficulty being, however, that many people are taking the same approach when looking at the matrimonial finances; believing that a ‘good divorce’ means sorting it all out between themselves and not obtaining a final financial order.

“Lawyers and Court Orders are just going to make matters worse aren’t they?!?”

Firstly, most family lawyers are keen to help their clients to reach an amicable agreement regarding their finances on divorce, and at a cost that their clients can afford.

Secondly, a recent study funded by The Nuffield Foundation, a charitable organisation whose mission in part is to advance social wellbeing, has commissioned the Fair Shares Project, which concluded that approximately 2/3 of divorcing couples seek no legal advice whatsoever in relation to the financial elements of their divorce.  Many, it seems, believe that they do not have any assets worth worrying about; that the cost of lawyers far outweighs the financial benefits they could gain from instructing a lawyer and/or think that involving lawyers is at odds with a ‘good divorce’ because it is going to create conflict.

Staggeringly and unfortunately, many do not realise that the final order dissolving a marriage does not prevent the ability for one spouse to make a financial claim against their ex-spouse – even years after the divorce and after the finances have been split..

The majority of couples do not have tens of thousands of pounds to spend on legal proceedings and so feel that they can sort it all out together – perhaps selling the family home, splitting it 50/50 and going their own separate ways – with no idea that a 50/50 split may not be as fair as it first seems, often forgetting about the potential values of pensions or other assets, and often without applying for a final financial court order which confirms the terms of the agreement between them.

The Fair Shares Project found that approximately 38% of divorcees do not have a clear knowledge of their ex-spouse’s financial position – leaving it almost impossible for them to realistically understand what a fair share of the matrimonial pot actually is.

The study also found that many divorcing couples do not realise that they have the option to consider pension sharing orders, or pension offsetting arrangements.  As a result many women, in particular, receive a much less than ‘fair’ share of the pot when attempting to agree financial settlements directly with their ex – because women often have smaller pensions due to lower earnings  (as a result of careers being put on hold whilst they look after the parties’ children, or working part time to enable the other parent to work full time).  Whilst retirement age may seem like a long way off for some, this situation can leave many, and in particular women, at risk of financial hardship in later life.

Many people who had obtained legal advice were surprised to find that it did not cost them the earth and in fact saved them a significant amount of money in the longer term with many spending around £1,000 – £3,000 and only 9% spending in excess of £10,000 – much less than the figures portrayed in the press regarding ‘high profile” divorces.  When pensions alone can be worth tens, if not hundreds, of thousands of pounds this can be money very well spent.

Even where couples are able to come to an agreement that they believe is fair, and which takes into account all of the relevant financial elements, such as pensions, many  still do not realise that it is not advisable to then go your separate ways – without a  court-sealed final financial order, it remains open to either of the parties to make financial claims against the other in later life. You may have very little to your name today – but what about in 5 years time?  15 years time?  The only way to protect yourself is to obtain a final financial order.

If approaching a family lawyer feels too daunting at first, a good alternative first step would be to speak to a family mediator about whether mediation could assist you and your ex.  A mediator can help you to understand the process of divorce and dealing with the finances, what legal options are available to assist you through the process, what financial information you should both be disclosing to each other and, how to divide what there is between you in a way that you both feel is fair.  Whilst you would both be advised by your mediator to obtain legal advice alongside the mediation, the mediation process can assist you both to save legal costs, and can help to keep the lines of communication between you and your ex open, whilst not preventing either of you from seeking legal advice to assist you with your discussions in mediation.

If you are separating we therefore recommend that you contact a family mediator and/or a lawyer specialising in family law to get a good understanding of what your options are.

If you are already divorced, and did not draw up a legally binding agreement with your ex at the time – don’t worry –  it may not be too late to do so now in order to put things right, and you would therefore be well advised to speak to one of our family mediators or a family lawyer at Forrester Sylvester Mackett.

Contact our Family Team on enquiries@fsmsolicitors.co.uk

 

The contents of this article are for the purposes of general awareness only. They do not constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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