Tracey O’Dwyer looks at the role of lawyers in divorce today
In these days of the internet, it is common for people to search online for information or solutions to their problems, whether searching Dr Google for guidance on a rash, finding out how to fix a phone issue, or how to get a divorce. Gone are the days when the first step was to visit a lawyer.
Doing it yourself
Where does this leave family lawyers? Since 2018, anyone in England and Wales can apply for a divorce via the gov.uk website without legal representation. April 2022 saw ’no fault’ divorce come into being – and the process became even more straightforward. The system is designed to be used by the public. Some people prefer to instruct lawyers to deal with it, but they don’t have to.
With more and more people starting the divorce themselves, many are seemingly not speaking to a lawyer at any stage. Of those, some of these are only requesting a free half hour and want no more than that. I recently spoke to a new enquirer, who happily told me he is doing it all himself, and he is having free half hours with multiple lawyers throughout his divorce. Alarmingly, some of what he said he had learned was wrong, but he was determined to blunder through with no legal costs.
The hidden cost
As such, with this rise in DIY divorce, what is being missed is proper advice on financial remedies and, in some cases, an order. People are selling their house, splitting the proceeds and going their separate ways, or having loose agreements as to maintenance or pensions for the future. We, as lawyers, only see the cases where the wheels come off further down the line.
In the last year alone, I have taken on a number of cases where parties have been divorced some years but not separated finances. In more than one of those, inheritances have been received, adding new elements and arguments – and in one the husband believed he had bought off the wife’s pension claims by being overly generous with capital – but that is definitely not how she sees it. These are potentially costly mistakes. An order at the time would have potentially squared things off”– and we wouldn’t have to be worrying about arguing for contributions, inheritances, post-acquired assets, and so on.
Probably the best-known case is Wyatt v Vince  UKSC 14, where the parties had no money to speak of during their short marriage, but by the time of the Supreme Court ruling, Mr Vince had a business valued at £57m. This is obviously extreme, and he likely did not miss the £300,000 plus costs that Mrs Wyatt was awarded, but the principles apply to all divorces. Needs can trump contributions, and unless you have a binding order, you may face future claims.
A big issue looming for some is pensions. Pension sharing has been available in divorce since 1 December 2000, and workplace pensions have been mandatory for some years now – meaning more people will have a potentially valuable pension building up that they are not even thinking about sharing. Many people who do not realise, or do not appreciate, how important this is, are going to get closer to retirement and then find their former spouse has woken up and realised pensions were not dealt with, and there were no financial remedies ordered in the divorce – leaving their claims open.
So, back to the original question, has DIY divorce gone too far? Yes and no. Yes, because there are too many people out there getting no advice or only free advice on finances. No, because it seems absolutely right someone should be able to do their own divorce if they wish to. However, there is a lack of awareness for many that final order in the divorce does not mean clean break, job done.
Some will be happy to take risks, rather than paying lawyers. However, there are also people who simply do not know the risks they are taking in not getting a final order (ideally by consent) on their matrimonial finances. A stronger warning on the public divorce online service may be helpful, perhaps at different stages, making people aware they could face future claims if they do not get a financial remedies order.
I will keep telling prospective new clients how important it is to get a financial order in their divorce for future certainty. However, such is the reputation of lawyers, I fear half of them think I am just saying it to earn money.
Tracy O'Dwyer is a consultant solicitor with Setfords Solicitors: setfords.co.ukTags:
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