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Family Law Blog

Comment on divorce & family law 

Government advice to arrange your own divorce misleading

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Government advice to arrange your own divorce misleading.

The Government’s own website now appears to be encouraging people to arrange their own divorce but there is plenty of advice it is not giving, such as the inherent dangers in doing this without taking legal advice.

The Government’s website has recently been updated and now appears to be actively encouraging people to arrange their own divorce.  It also flags the fact that mediation can help resolve dispute over issues like finances and what happens with the children – and that is a positive move. However, suggesting that it is straightforward to sort out the legal issues around divorce without engaging a solicitor is fraught with danger.

Now, we would say that, wouldn’t we? We are realistic though. We realise that changes to Legal Aid have led to a huge increase in people acting as Litigants in Person (LiPs) and those trying to save money on divorce by not taking legal advice. This is natural. However, the pitfalls of this approach have not been clearly communicated and this makes it impossible for people to make properly informed choices on the route that is best for them. In a nutshell, cutting out legal advice at the start of the process may end up costing them dearly when the settlement is agreed.

There is a general move by the Government to encourage people to settle their divorce without involving the courts. This keeps more court time free. This is an understandable motive but people still need to be advised by trained professionals on the best course for them rather than choosing a particular one by default. There’s a real danger that people go through the legal process without understanding the consequences. For instance, when the Government site (almost in passing) says you agree how you’ll split up property, pensions etc, that assumes a number of things:

  1. People are open and honest about their finances – in our experience that isn’t always the case and often one party has always controlled the finances in a relationship and the other person has little or no knowledge about the details
  2. People understand the true long-term value of something like a pension versus the value of a more tangible asset, like a house
  3. People want to be fair to each other
  4. They have thought about the longer term consequences. For instance, all very well letting them stay in the house with the kids but what about when they meet a new partner, will your view change and might it be too late then to do anything about it?

The experience of our team of divorce lawyers is that people don’t understand the legal process, or the forms involved. This is clearly demonstrated by the number of forms that get returned by the courts because they are incorrectly completed and the number of calls we get each week from people who ‘just want help with the forms’  or ‘need someone to explain’ what the letters they have received from the court actually mean.

Each month we handle over 300 enquiries. I would guess up to 20 per cent of these are from people who are trying to arrange a divorce themselves and need help. It’s not as simple as they thought, or as the Government website is making out.

Tellingly as well, how can people “agree” on a settlement and children arrangements if they don’t know what the law, made by the Government, suggests they should have?

People can cut back on fees around a divorce in a number of ways but going it alone and cutting out legal advice altogether is not sound advice – whether it comes from the Government or that annoying bloke down the pub.

By Andrew Woolley
Divorce & family solicitors Woolley & Co

Comments

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Almost sounds tempting doesn’t it? - Govt advice to go it alone on matters of finance. After all, what’s to lose if you are already living out of a cardboard box?

But the majority of us are fortunate not to have that sort of lifestyle - and if financial arrangements are mismanaged; not properly thought through; or, derail at some future point due to lack of knowledge, what then? An early mistake may have dire ramifications in both the short and longterm. At least with an established solicitor you have the wisdom and experience to finalise matters and bring peace of mind. It’s a no-brainer.

That said, on matters of children following separation, the Govt has NOT suggested what sort of arrangements might be made - other than that parents should ‘agree’. In fact, the Govt, and Cafcass, are opposed to the introduction of such guidelines outlining how a child’s time might be apportioned in the median case, with reference to quantum and frequency of visits. Thus, instead of negotiating from what the norms might be in the median case - as there is no ‘presumption of contact’, arrangements are negotiated from a ground zero start point working upward. Needlessly protracted litigation seems inevitable, often resulting in child parent severance.

Whilst it is clear from other related posts that Woolley & Co are mindful of the foregoing, and sympathetic to the sort of approach based on what parents might agree - the fact is, other solicitors are not.  If you find that your solicitor is suggesting that you go along with a proposition of, say, an hour with your child in a Contact Centre; or, 2 - 3 hours a week contact as a start point - you may wish to seek professional advice elsewhere.

Whilst allocated time may not be equal, it is imperative for a child’s future wellbeing that separated parents continue to share the parenting.

Although Govt advice is perhaps well-intended, there is no substitute for the right sort of professional advice, especially when it matters most.

By Kenneth Lane on Thursday July 3, 2014

Kenneth writes a very thoughtful comment, above.

It is interesting that for many years the Government has told Courts to resolve financial disputes based on an approach of fairness and also that the Courts—for many years—normally made the starting point assumption of 50 / 50.

As Kenneth says, they seem shy to do anything like that when it comes to childre. So, suddenly upon separation, one parent who has for years had daily care and physical contact with their children is asumed to be—what?—not good enough for that or anywhere near that contact any more? Seems bizarre to me.

Of course there are cases when a parent should not be allowed within a thousand miles of a child, but they are thankfully extremely rare.

At the moment we are left with the reality that the parent who the children normally lives with has a lot of practical power over when the other parent sees the children. As discussions about the frequency of contact tend to take place in the immediacy of the breakdown of the relationship, then without an assumption of, say, “equal time for both parents” the result is too often the use of the children in the battle between them or the creation of a battle where there was none due to the vacuum of real guidance from the Government.

By Andrew Woolley on Friday July 4, 2014

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