DIY divorce: common pitfalls of doing it yourself

With the introduction of a new online divorce system in 2018, it has become evident that more and more people are now choosing to undertake a so-called ‘DIY divorce’.

In short, a DIY divorce effectively enables either party to represent themselves within divorce proceedings. Whilst this is certainly a cheaper alternative to instructing a solicitor, undertaking a DIY divorce is not without its pitfalls. So what are the common mistakes that people fall foul of, and what do you need to be aware of when undertaking a DIY Divorce?

The Divorce Petition and common errors

Whilst finding a Divorce Petition (D8 Form) online is relatively straightforward, many people find them difficult to complete. In addition, many individuals are simply unaware of the various legal implications that can result through completing a Divorce Petition incorrectly. This point is particularly relevant for those individuals that are seeking to file petitions on the basis of their spouse’s alleged unreasonable behaviour or adultery. For example:

1. if you are seeking to rely on the ground of adultery, this must either be admitted or proven. Furthermore, you are not permitted to rely on your own adultery as a ground for divorce;
    
2. including unreasonable behaviour particulars that are out of time (i.e. referring to incidents that occurred more than 6 months ago if you continue to reside with your spouse), or not citing enough examples of unreasonable behaviour within the petition in order to meet the necessary legal threshold;
    
3. wrongly assuming that your spouse will accept an unreasonable behaviour petition, or alternatively that they will give their consent to a petition which is based on two years continuous separation.

The above examples are likely to result in the Court either refusing to issue your divorce petition, or alternatively in your spouse opting to defend the petition or even cross-petition. The knock-on effect of all this is likely to be an increase in the amount of time it takes for your divorce to be progressed, which can be frustrating for all involved.

Financial claims

It is widely mistaken that when concluding divorce proceedings (i.e. the pronouncement of the Decree Absolute – the legal document which formally dissolves your marriage) that a couples’ financial claims against one another will automatically be dismissed. This is not the case.

There are in fact separate proceedings (known as ‘Financial Remedy Proceedings’) in order for parties to settle and dismiss their financial claims against one another. Only once these proceedings have been concluded will a party have the necessary financial security in place. It should be stressed that any financial agreement reached with your ex-spouse will need to be approved by the Court in order for it to become binding. Without this step being taken, your ex-spouse will be entitled at any time in the future to apply for financial relief against you which could result in some or all of the following occurring:

1. payment of a lump sum;
2. transfer/sale of a property; or
3. financial provision from your pensions.

Frequently, individuals undertaking DIY divorces are simply unaware of the issues outlined above, which can lead to difficulties in the future. Delayed financial claims often arise when an individual’s circumstances change – either for the worse (e.g. they lose their job), or for the better (e.g. one party inherits a large sum of money or they win the lottery).

It is therefore of crucial importance that individuals do not leave themselves open to potential financial claims from their ex-partners, and seeking legal advice on these issues can help to ensure that you have the necessary financial security in place moving forwards.

The remarriage trap

If you divorce and subsequently remarry, without first having had a financial agreement approved by the Court (commonly referred to as a ‘Consent Order’), then you will be prevented from applying for a lump sum, property adjustment or spousal maintenance order against your former spouse. This is what is known as the ‘remarriage trap’.

The practical implications of falling into the remarriage trap can be disastrous, as it may result in you losing the right to claim any assets from your spouse, even though, as part of a divorce, you might have been able to make those claims. It is therefore essential that you take steps to avoid this pitfall, and a legal professional will be able to assist you in this respect.

The benefit of clear legal advice

It is clear that the driving factor for many individuals undertaking a DIY divorce is to save costs. However, as has been outlined above, undertaking a DIY divorce can be fraught with difficulties and it can also often make the process more stressful and time consuming than it needs to be.

It is therefore advisable to seek legal advice at the outset of your divorce proceedings, and to get a solicitor to check the divorce petition prior to filing it with the Court. It is also crucial that you consider the financial claims that exist between you and your spouse, and to seek advice as to how those financial claims may be adequately dealt with. This will help to ensure that there are no unexpected surprises for you in the future.

If you would like to know more about the topics discussed in this article, please contact Stefan Donnelly or a member of the Birketts Family Law Team.