For most clients, the decision to separate or divorce is made even more daunting by the prospect of having to go to court. Whether you need to go to court during a divorce in England and Wales depends on the part of the process you are dealing with.

Broadly, a divorce involves three separate elements:

• The divorce itself (legally ending the marriage);
• Resolving financial matters;
• Arrangements for any children of the family.

Each of these is dealt with differently.

Divorce

To legally end your marriage, you will need to obtain a final divorce order from the court. This was formerly called the Decree Absolute.

The divorce process itself is largely administrative and is now handled online through the Government’s digital portal. Court attendance is unusual and typically only arises if the divorce application is contested (which is rare following the introduction of the “no-fault” divorce in 2022). In most cases, the court will not require you to attend any hearings and will make the relevant orders on paper.

Finances

Resolving financial matters is a separate process from the divorce itself.

A divorce does not automatically end financial claims between spouses. If you do not obtain a final financial order from the court, financial ties remain in place. This means that either party may be able to bring financial claims in the future, potentially including claims against:

• Assets acquired during the marriage;
• Assets acquired after the divorce (for example, inheritance or business interests); and
• Pensions.

For this reason, it is important to obtain a final financial order from the court.

If you reach an agreement

If you and your spouse can agree how your finances should be divided:

• The agreement should be recorded in a consent order;
• The consent order should be submitted to the court for judicial consideration and approval; and
• There is usually no need to attend a hearing provided the judge reviewing the order agrees that the outcome is broadly fair and you can each meet your financial needs (and those of your children, if there are children under 18) after the divorce

Once approved, the order is legally binding and ends your financial ties (including, where appropriate, giving you a “clean break”).

If you cannot agree

If an agreement cannot be reached between the two of you:

• Either of you can apply to the court for financial remedy proceedings; and
• The court will ultimately determine how assets should be divided if you are unable to reach an agreement before then.

In these cases, you will be required to attend court hearings.

There are many other options available to you to try andresolve your financial claims, as set out below.

Children

Arrangements for children are treated differently. If you and the other parent agree the arrangements, the court is not informed or involved at all.

The court works on a “no order” principle, which means it will only make an order if it considers that doing so is better for the child than making no order at all. In practice:

• Parents are strongly encouraged to agree arrangements between themselves; and
• You do not need a court order if agreement can be reached.

If agreement is not possible, either parent can apply to the court for a decision on specific issues (for example, where a child should live, how time is shared between parents or where a child should go to school). This will involve attending court hearings.

Non Court Dispute Resolution (NCDR)

Before making an application to court, the court expects you to consider whether the dispute can be resolved without court proceedings.

This is referred to as non‑court dispute resolution (NCDR) and may include:

• Mediation;
• Arbitration;
• Private Financial Dispute Resolution (FDR) hearings; and
• Early Neutral Evaluation.

The court can take someone’s attitude and conduct towards NCDR into account, so it is important to consider and engage with this process where appropriate. There are some exceptions to this, for example where the relationship has been or continues to be abusive.

Even if there are active court proceedings, the court encourages parents or spouses to continue to try to reach an agreement and there are hearings with the purpose of trying to negotiate an agreement.  A judge also has the power to stay (i.e. pause) proceedings to allow NCDR to take place.

We support individuals at all stages of separation anddivorce, whether through negotiated solutions or court proceedings wherenecessary. Our team is made up of mediators, collaborative lawyers, a onelawyer two clients service and an arbitrator as well as experienced courtlitigators. If you would like advice on your specific situation, please contactus at mail@burgessmee.com.

‍

‍