I’m getting divorced, do I have to go to Court?

Separating from your spouse and getting divorced can be a very difficult and stressful experience for many reasons. You will probably have many questions. Here, Weronika Husejko takes a closer look at one of our most frequently asked questions by those about to go through the divorce process – do I have to go to Court?

In terms of the divorce itself, it is very rare that you will have to attend Court. The new ‘no fault’ divorce procedure does not allow for your spouse to dispute the divorce generally, unless they do not agree that the Court has jurisdiction or that the marriage was valid. This was not the case previously.

Prior to the no fault divorce procedure, the spouse applying for the divorce could apply for a Costs Order against the other spouse, effectively asking the Court that an Order is made that they pay all of their divorce costs. This was another reason for dispute in the past. However, the Court will now only make Costs Orders in divorce proceedings in very rare circumstances. As a result, there are now fewer opportunities for dispute in divorce proceedings, which significantly reduces the chance of any Court attendance.

When you are going through a divorce, the financial element is usually dealt with separately. Many couples are able to negotiate and reach a financial settlement outside of the Court arena e.g. via solicitors, mediation or between themselves. This would usually mean that you do not have to attend Court, unless you are already in Court proceedings at the time that you reach the agreement. When a financial settlement is reached in this way, a Consent Order reflecting your agreement can be submitted to the Court alongside a form which summarises your respective financial positions. The Court will usually consider this type of application on paper in the couple’s absence. They may request that the  couple attend Court in rare circumstances, for example, if they have serious concerns regarding the proposed division of the assets.

If one spouse makes an application to the Court for a financial remedy order, (this is an application asking the court to deal with the financial aspects of their divorce), this may result in both spouses having to attend Court. This is the most common reason for Court attendance generally within a divorce. This is because when financial remedy Court proceedings are issued, the case will automatically be listed for a ‘First Appointment’. This is an administrative hearing. However, more frequently these days, the need for this type of hearing is circumvented by the spouses agreeing the ‘directions’ which are needed to move the case forward e.g. the instruction of a surveyor to value a property.

The second hearing is the ‘Financial Dispute Resolution Appointment’. This is a negotiation hearing whereby both spouses will usually attend Court with their legal representatives. If the spouses do not reach an agreement at this hearing, the case will be listed for a ‘Final Hearing’, whereby they will have to attend Court to give evidence. However, this is less common as most cases settle at the negotiation hearing.

The short answer is that you do not necessarily have to attend Court in order to get a divorce. Whilst it is not always possible to avoid Court proceedings, divorcing couples are generally encouraged to try to reach an agreement outside of the Court arena. The best outcome in a divorce is arguably a financial settlement which the couple have agreed, as opposed to a decision which has been imposed upon them by a Judge.

If you or someone you know is affected by the issues raised in this blog post, we can provide you with expert legal advice. For more information, please get in touch with our specialist team at hello@mcalisterfamilylaw.co.uk


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