Amelia Bunce, Trainee Solicitor
Amelia has been supporting John Randle in the family team, dealing with all aspects of family law, specialising in high-net-worth divorces. She also works on contentious and non-contentious employment matters, and personal injury claims – including those arising in connection with historic child abuse.
While the courts play a very important role in many divorces, it is not necessary to attend court to finalise your divorce. The process of dissolving your marriage is completed online via the HMCTS portal.Neither party is required to be present in court for the judge to grant the conditional and final orders.
However, obtaining a divorce does not settle the division of your finances. Divorce ends your legal marriage, but to settle your finances in a legally binding way you will need to apply for a consent order (also known as a financial remedy order). Even if you and your ex-spouse have amicably agreed the financial arrangements surrounding your divorce, these arrangements will not be considered legally binding unless approved by the courts.
If parties cannot agree to divide their assets amicably (a non-contentious divorce), a judge will need to determine what constitutes a fair division of these assets at a contested hearing.
Non-contentious settlements
Divorcing parties are often able to reach an agreement without involving the courts, either by consensually determining how their assets will be divided, by undergoing mediation, or by involving solicitors who help them to reach a fair settlement. If this is the case, both parties should have a lawyer each to review the agreement to ensure that it is within their best interests and is fair and reasonable in the given circumstances. Some further negotiation may be required at this stage, and it may be necessary to amend the agreement to ensure fairness is achieved for both parties.
If both sets of solicitors agree that the outcome is fair for both parties, they will turn the agreement into a ‘draft consent order’ which formalises the agreement. The parties will also be required to fill in a statement of financial information, including their income, assets and future plans (known as a D81 court form). The draft consent order and statement of financial information will be submitted online to the court.
A judge will review the fairness of the agreement for both parties, paying careful consideration to the ‘Section 25 factors’ (Matrimonial Causes Act 1973). If the judge agrees that the settlement is fair, the order will be approved. However, until a judge has approved the order, no agreement between the parties will be legally binding or enforceable.
Contentious Cases
If parties cannot come to an agreement, one or both parties will usually be advised to issue court proceedings seeking a financial remedy order. This means that the parties will follow the court procedure before a judge decides on the fairest way to divide the marital assets. Parties will usually need to attend three court hearings before this decision is made at a final hearing. However, the court system is designed to give parties the opportunity to come to an agreement at any point, and there are many opportunities for negotiation during the process.
Will I ever have to speak in court?
The only time you will be required to speak in court is at a contested final hearing. You will be asked to justify why you believe that the assets should be divided a certain way, give oral evidence for this belief, and answer any questions posed by the other party’s legal representatives.
While this may seem daunting, court is not something to be feared. If you do need to attend the final hearing, you will find that the family court environment is much less hostile than you may have been led to believe based on film and TV. Cases are heard in a small court room where your case is heard confidentially (unless a “transparency order” is made allowing the press to attend). The only people present will be the judge, you and your ex-spouse, and your respective legal representatives.
If you need assistance navigating your way through your divorce, we are here to help. Please reach out to arrange a free initial consultation with our specialist family team.