There is a common misconception that taking legal advice is contrary to being able to divorce amicably and it can often be seen as taking an “aggressive” step.
However, this is not the case and the contrary is true. Taking legal advice can actually help you in achieving an amicable divorce, whether that be for the divorce proceedings or the resolving financial matters between you.
Dealing with divorce amicably
In respect of the divorce proceedings, there is presently one ground for divorce, namely, that the marriage has “irretrievably broken down”. To be successful in achieving a divorce, you must evidence to the court one of five facts including:
- Unreasonable behaviour;
- Two years separation with the other party’s consent;
- Five years separation; and
Under present law, it is not possible to divorce without apportioning blame on the other party, unless parties wait two years to divorce (and the other party consents), or the parties wait five years to commence divorce proceedings.
The other three facts, adultery, unreasonable behaviour, and desertion are all called what are known as “fault based” divorces.
This is all due to change as a result of the Divorce, Dissolution and Separation Act 2020 which introduces the long overdue “no fault divorce”. With initial plans to be implemented in October 2021, it appears now, from recent Parliamentary questions, that this is not going to happen until April 2022.
The implementation of the new law will of course assist couples who wish to amicably divorce and not place any blame on the other.
Until then, understandably, parties who wish to divorce amicably feel like they are in “limbo”, wondering whether to wait until April 2022 or proceed under once of the present “fault based” facts.
Using one of the other “facts” does not mean that you cannot divorce amicably if you are keen to get the ball rolling.
Whichever ‘fact’ is used, by taking advice from a family lawyer, you can ensure that the divorce petition is worded as amicably as possible. At the same time, obtaining legal advice can help to ensure that the petition will be worded sufficiently to pass the legal threshold and persuade the court that a divorce should be granted.
There are steps that we, as family lawyers, can take on your behalf to keep the divorce process as amicable as possible (if that is what you wish to achieve) for example:
- Providing a copy of the divorce petition to your former partner in advance of it being sent to court, so they are aware of what is being said and can raise any comments or objections.
- To ensure that correspondence is always worded on in an amicable and conciliatory way; and
- Not using any emotionally charged language (which is hard to do if you are trying to resolve matters between you and without legal advice).
However, you should actually always seek legal advice to prevent the chance of a future dispute as a family lawyer will advise you:
- Whether the agreement that you have reached is actually fair (looking at the financial circumstances of you both and any financial disclosure); and
- Assist you in preparing a consent order (a legally binding agreement) which must be put in place to ensure that all financial ties are severed between you wherever possible.
If you do not enter into a legally binding consent order, your financial claims against each other are left open. This can create legal disputes down the line and result in potential future financial claims arising out of your marriage in respect of income, property, lump sums or pension.
Further, without a legally binding order, one party may try and resile from an agreement later or change their view and believe the agreement was somehow unfair. This can be avoided if you take legal advice from the outset and ensure a consent order (which must be fair to you both) is put in place.
In taking legal advice, you can therefore achieve:
- Efficiency in the divorce process;
- Fairness in terms of an overall financial agreement;
- Certainty that you have dealt with the division of any finances properly to prevent further dispute and therefore;
- An amicable divorce
It is important to realise that in dealing with matters properly, with proper legal advice and through correct legal procedure, you are actually doing all you can to keep things amicable.