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No-fault divorce online – don’t get caught out

It has recently been reported that, perhaps unsurprisingly, there was an increase in the volume of divorce applications that have been filed since “no-fault” divorce came into force on 6th April 2022.

Many people will likely have waited for the change in law to take effect rather than issue under the old fault-based provisions and risk getting their divorce off to an unnecessarily difficult start when who was at fault made little to no difference under the old regime in any event, particularly when it came to the things that actually matter on a separation – the arrangements for any children and dealing with the financial aspects of the relationship breakdown.

There will also be those who were already waiting to proceed under the previously available no-fault provisions which required a separation for two years and the consent of the other party or a separation for five years without consent. Those individuals will have been able to move forward sooner than they may have initially anticipated. The new process does not require consent and, save for very limited circumstances, it is no longer possible to contest a divorce.

Despite many media reports, the changes have not in fact made divorce “easier”, and there is still no such thing as a “quickie divorce”, with the minimum time frame in which the process can be completed actually being longer under the new law. What it has done is remove unnecessary acrimony from the process at the outset in circumstances where one or both parties wanted to proceed immediately as they would previously have had to attribute blame to do so.

Of far greater importance in terms of issues to consider are those matters referenced above, the arrangements for any children and dealing with the financial aspects of the divorce. Under the new process and with the advent of online divorce, it may, however, now be easier for key steps to be overlooked.

Parents are expected to exercise their parental responsibility and make decisions that are in the best interests of their children in the first instance, without recourse to the court. Many parents will be able to resolve these matters themselves and, in those circumstances, there may be no need for legal support unless one or both parties want the arrangements to be recorded by way of a parenting agreement. Where parents are unable to agree the arrangements for their children on a separation, it might seem obvious that legal advice will assist.

However, this might not seem so obvious where the parties have been able to agree what should happen in respect of their financial arrangements, particularly where the parties have dealt with the divorce proceedings themselves online. Unlike child arrangements where the court does not need to get involved if there is an agreement, the court’s involvement in respect of finances is vital if the parties wish to be held to any terms they have agreed.

No agreement reached between the parties as to their financial circumstances is binding on either of them, even if they have fully implemented their agreement and gone their separate ways having obtained what is now known in the divorce proceedings as a final order (previously, the decree absolute).

The only way to ensure an agreement is binding and to secure financial protection is to obtain a consent order dealing with the finances. Like the divorce process, this can also be done electronically online without the need to attend at court and a solicitor can prepare the necessary paperwork required.

For those who do not take this step, months or even years down the line when financial circumstances may have changed dramatically for both parties, there may be the prospect of a metaphorical “knock at the door” from someone seeking to renege on the agreement and asking for more. Without tying up those loose ends, they would be able to do so, however unfair this may seem.

Divorce may not have become “easier” under the new law, but it may have become easier to fall into the trap of leaving yourself exposed financially without proper advice and support.

Contact a divorce solicitor

For further information about this article please get in touch with Adam Maguire, divorce and family partner, specialising in advising on the complex financial issues arising out of divorce.

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Adam Maguire

Partner

Birmingham
Adam specialises in divorce and family law. He advises clients regarding all aspects of private family law including cohabitation, separation, divorce and related financial issues, disputes concerning children and nuptial agreements.
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