This time last year, the legal press and even national newspapers were full of the anticipated changes to the divorce process and the start of “no fault divorce”. Hope was high amongst legal practitioners who had lobbied for the need for change for many years, recognising as we did that beginning the divorce process with blame set entirely the wrong tone. If we are to expect separating couples to negotiate in a non-combative way using alternative dispute resolution options such as mediation and collaborative law to resolve the inevitable financial consequences of a divorce, it is not helpful to start with blame.
It is an opportune moment therefore to reflect on whether our ambitions have met their desired outcome. On the one hand, I have seen a significant drop in the number of clients asking me to help them with divorce proceedings. The online process is very straightforward and for many people, it is something that they are happy to address themselves with minimal input from legal advisors; after all it is now simply an administrative process and the online forms are familiar to many who have used the government portal for tax returns, applying for probate or benefits. It is easily navigable and useable. So far so good.
The unintended consequences perhaps are only just beginning to show themselves. Usually, when clients came to us following the breakdown of their relationship, we would discuss the divorce but we would also discuss financial matters and the impact of divorce (and remarriage) on any financial claims they may have. The first swathe of Final Orders began to filter through towards the end of last year; there is no doubt in my mind that some will have done so not knowing that there are potential pitfalls in not having resolved their finances or, having resolved their finances, not having recorded their financial agreement formally in a Consent Order.
For some, with no legal advice, there is a risk for already unequal financial positions to remain unchecked. Without advice, there is a risk that the financially vulnerable, or those who have been subject to domestic and/or economic abuse, will simply walk away with far less than they need – or indeed are entitled to. Or they may remain trapped in a relationship with the divorce having done nothing to improve their circumstances.
By not coming to visit solicitors at the outset of a divorce, strategic discussions do not take place and financial planning may not happen. Unintended consequences are not considered and many will find themselves having sleep-walked into an outcome which is not fair, or is recorded through ignorance, ‘internet advice’, or simply to keep the peace.
I worry that there is not sufficient warning during the online court process to identify these potential issues and the need to take legal advice to understand the financial implications of divorce.
If that sounds very gloomy, on a more positive note, I have found that where clients have taken legal advice relating to either child arrangements or financial matters following the breakdown of their marriage, the fact that the divorce has started on the basis no fault, does set a different tone for many cases. The couple are encouraged to look forward rather than to look back and to focus on their future needs rather than past wrong doings. It has meant that there has been a greater uptake of mediation which has the added benefit of maintaining a working relationship between the separating couple – particularly where children are involved – and limiting costs.
The answer will be to keep the focus on the need to reach financial settlement in the public eye. The Law Commission has begun a review of the laws governing financial provision on divorce with a view to simplifying the 50 year old guidelines, which might take a while to come to fruition but I hope keeps the issue in the public domain. As Baroness Shackleton said in the Lords debate last month “there is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in the conflict.”
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