With the advent of online divorce more and more people are doing their own divorce, especially since no-fault divorce has made the process considerably simpler.
And having dealt with the divorce themselves, many are tempted to go one step further, and sort out financial arrangements themselves.
There is, of course, nothing to say you must have a lawyer when you divorce, but there is considerable risk in trying to sort out financial arrangements without the advice and assistance of a lawyer.
And this remains true even if you are able to agree a financial settlement with your (former) spouse.
The need for an order
Many would no doubt think that if they agree a financial settlement then there is no need to get a lawyer. After all, lawyers sort out financial settlements, but if it's already been sorted out there is nothing for the lawyer to do, right?
Wrong.
An agreed financial settlement, even if in writing, is not final, or enforceable.
When you agree a financial settlement you will want to be sure that that is the end of the matter. The last thing you will want is for your former spouse to come back years later, demanding further money from you.
But it is quite possible that they could, if the agreed settlement has not been put into a court order (usually referred to as a 'consent order'), in which the court dismisses all further financial claims by either party against the other.
And a consent order is even required in the simplest of cases, where the parties just agree to make no financial claims against the other – without an order they could still make such claims in the future.
And then there is the question of enforcement. What if your former spouse fails to keep to the terms of the agreement? You will then want to ask the court to enforce the agreement. To make sure you can do this you will need to have the agreement put into an order, which the court can enforce.
Getting a consent order
OK, so why do you need a lawyer to get a consent order? Why can't you get it yourself?
The first reason is that the consent order has to be drafted, and sent to the court. The court will not draft it for you.
And court orders are technical documents that really should be drafted by an expert lawyer. Apart from anything else, you want to ensure that the draft correctly reflects the terms of the agreement.
The second thing to understand is that the court must approve the draft order. It will not simply make the order because both parties agree to it – it will want to ensure that the order it is being asked to make is at least broadly reasonable, in the circumstances of the case. If the court is not happy with the order, it will not make it.
The court therefore requires both parties to file with the draft order a detailed statement of information, setting out their means and other relevant factors, which it will use to judge whether the agreement is reasonable.
A lawyer will be able to advise you whether the agreed terms are reasonable, and therefore likely to be accepted by the court. The lawyer will also help you complete the statement of information.
And sometimes if the court is not satisfied that the settlement is reasonable it will ask the parties to attend court, to explain why the order should be made. Obviously, it would be best to have legal advice, or even legal representation, in such circumstances.
To summarise, it is quite possible in most cases to deal with the divorce itself without the assistance of a lawyer. But legal assistance should still be sought in relation to the financial aspect of the divorce, even if matters are agreed.
Originally published 9 June, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
