19 October 2016
Do I Need to go to Court if I am Getting Divorced?
Kate Moss and Jamie Hince have reportedly recently agreed an ‘out-of-court settlement’, dealing with their financial affairs, on their divorce. The pair apparently wished to avoid a high-profile court battle.
But is reaching an agreement outside of court really as unusual as the media perhaps suggests?
When we talk about a couple getting a divorce, this can be split into two things - the divorce itself and the finances on divorce.
Divorce is a paper-based process, i.e., to petition for a divorce, respond to a divorce petition and apply for the various stages in a divorce, a paper form needs to be filled in.
The court will spend time reading the different forms along the way and will produce more paper documents at various points, such as the decree nisi and decree absolute.
In most cases, there is no need for the couple to go to court themselves and it is likely that this was the case for Kate and Jamie. However, a couple may find themselves in court if the divorce is defended or there is an argument about who should pay the costs of the divorce.
The Finances on Divorce
When you hear of celebrities involved in a high-profile court battle on their divorce, it will almost always be a battle in relation to the finances on divorce, but a court battle is not inevitable.
There are various ways that you can reach a financial agreement on divorce outside of court.
Four Ways to Keep Your Divorce Out of Court:
- Agree Between Yourselves - The first step is always to see if you can reach an agreement between you and your partner.
- Through Mediation - Some people find it too difficult to agree between themselves and so having a mediator as a sounding board can help a couple to talk more easily.
- Use Solicitors to Help Draft Your Proposal - If you have a financial proposal in mind, but find it hard to speak to your spouse about it directly and cannot speak about it in mediation, a solicitor can put it forward a proposal on your behalf and it may be that an agreement can be reached from there.
- Use Solicitors Advice For a Proposal - If you would prefer a solicitor to advise you about a fair financial settlement before you reach agreement, they will need you and your spouse to swap financial information (often via you both completing a Form E).
Financial proposals can be made and agreement reached, once all of the financial information is in place. To read more see: What documents do I need to provide by way of Financial Disclosure?
If agreement is reached in any of the four ways above, it should be drafted into a Consent Order, which should then be sent to court for approval, so that it is made legally binding.
In most cases, courts deal with Consent Orders on paper and will not ask the couple to attend court in relation to it.
Only if you are not able to reach agreement in one of the ‘four ways to keep your divorce out of court’ it’s likely that you will find yourselves in court.
Applications to court are expensive and stressful. I would recommend that you use this only as a last resort option because making an application to court is likely to strain your relationship with your spouse.
Happily, we can assume that Kate Moss and Jamie Hince reached agreement in one of the above ways.
Rhiannon White is a family law solicitor at Slater and Gordon in Chester and Wrexham.