Divorce – do I really need a solicitor? What about financial and property issues?

Divorce – do I really need a solicitor? What about financial and property issues? Not an easy question to answer. Going through the breakdown of a marriage is a pretty horrible experience for most people. The worry about whether to instruct solicitors and incur legal fees adds to the problem.

Divorce is based upon the irretrievable breakdown or a marriage and every divorce petition states that the marriage has broken down irretrievably. The petition then has to contain details dealing with one of five “facts”. It is the fact which contains the grounds for the divorce. The fact can be any of the following:

(a) That the respondent (the party against whom the proceedings are brought) has committed adultery and the petitioner (the party commencing the proceedings) finds it intolerable to live with the respondent.

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This fact involves allegations being made in the petition relating to the behaviour of the respondent.

(c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.

(d) That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted. Without such consent, the divorce cannot proceed.

(e) That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. The consent of the respondent is not necessary when there has been such a separation.

Once the divorce has been commenced, the process is fairly straightforward, provided that the respondent doesn’t defend. Defended divorce is very rare in practice.

Some people deal with divorce proceedings without instructing solicitors and do so quite successfully. It’s a learning kerb for parties acting without solicitors, but provided that enough time is spent in understanding the procedure and dealing with the documentation and correspondence it can certainly be done. Having said this, solicitors costs are not as high as many people think, provided that the case doesn’t involve property issues or any dispute involving children.

For dealing with a divorce on behalf of a petitioner solicitors will often charge about £500 - £600 and vat. The charge should be less for representing a respondent. Not cheap, but not astronomical. There’s also a court fee of £550 to pay, unfortunately, although the petitioner can apply to the court for an exemption from the fee, or for a reduction. Whether the application for the fee exemption is successfully depends upon the petitioner’s income and capital position. The legal costs can be higher if unforeseen difficulties arise, but the process should run smoothly.

Some parties also deal with financial and property issues without legal advice. This presents more of a problem and there are risks in doing this in many cases. If solicitors are instructed, then the costs can become pretty high and it’s crucial that solicitors advise clients properly with regard to costs. There’s little point in arguing about relatively small amounts of money if the legal costs exceed the amount involved! There has to be common sense. The hope is that agreement can be reached without contested court action becoming necessary and sensible solicitors will always try to achieve an agreement which is reasonable and takes account of the legal costs. It does nothing for the reputation of a firm of solicitors if clients conclude that the legal cost did not justify the result.

These days, in most cases involving disputes relating to financial and property matters, attending an initial meeting with a mediator is compulsory, prior to the issue of court proceedings. Most people believe that disputes are better resolved between the parties, prior to or during medication, rather than by a court. When terms are agreed, an application can be made to the court for a court order to be made in those terms and such an order can be made without either party or solicitors having to attend a court hearing. If terms can’t be agreed, then eventually a judge will make a decision with regard to financial and property issues. It would be a pity if it comes to this and every effort should be made to reach agreement prior to there being a final hearing.

It really is worthwhile getting legal advice with regard to financial and property issues even if the advice is limited to the issue of what would be a reasonable outcome. At least that way, parties can be given some idea of what is and isn’t reasonable.