A dangerous trend in family law

This autumn saw a major supermarket group diving into the family law market with the launch of DIY divorces. Here, Lyn Rutherford of Mincoffs explains why he’s concerned by the move.

The Co-op supermarket has recently announced that it will soon be offering DIY divorces from just £99. Call the hotline, pay your money and you will be sent your step-by-step guide to divorce. Pay an extra £50 and one of the Co-op lawyers will look over your papers for you or, for an additional £150 you can have an hour of advice over the telephone. Bargain! So why spend money on lawyers?

If the split is amicable, you have no children, no property, no assets or possessions a DIY divorce may be an attractive option. However, in reality, very few divorces will fall into this category.

Divorce is one of those topics that everybody often thinks they know about. From stories passed around the staffroom to celebrity divorces splashed across the press, people are often full of advice and ‘facts’ about what people should and shouldn’t do and how the process works. Given the number of marriages that unfortunately end in divorce, most people often know somebody who has experienced divorce themselves. Surely they should know everything, right?

The reality is very different. No two marriages are the same and therefore, inevitably, each divorce/separation has its own set of circumstances. There is no ‘one size fits all’ when it comes to divorce.

If you’re not a plumber you wouldn’t plumb your own bathroom would you?

If you’re not a mechanic you wouldn’t fix your car engine would you?

If you’re not a lawyer you wouldn’t do your own divorce……would you?

Most people that have been through a divorce are likely to agree that it when it comes to emotional turmoil in a lifetime, it’s definitely up there! As a result it is often very difficult to be dispassionate when acting for yourself, in your own family breakdown. It is difficult to stand back from the facts and look at them objectively as people have a very natural tendency to see things from their own perspective and struggle to act impartially, often becoming embroiled in minor issues whilst losing all sense of objectivity and failing to see the wider picture. Family life is not a matter of ticking the right boxes. There are lots of twists and turns and nothing is ever black and white. When dealing with the most important thing in life, there is a lot to be said for a bespoke service, tailored to the individual family’s needs and getting it right.

The law is a technical area of expertise just like any other learned skill and it is easy to make mistakes. It is not often recognised that the process of a divorce is commonly divided into three parts; the process of obtaining the Decree Absolute, (the end point in a divorce that allows parties to re-marry) deciding how the matrimonial assets are to be divided and issues in relation to the children – where they will live and how often the other party will see them. Each aspect is very different and requires very specialist advice and attention to detail.

In most technical areas, there are many myths that circulate and divorce is no exception.

So many people are led to believe that they can only obtain a divorce if the other party agrees. Not true. So many think they have to wait two years. Not always true.

In England and Wales, a divorce can only be obtained when a marriage has irretrievably broken down which can be proved by one of five specific facts in the divorce petition.

By way of example, adultery is one of the five facts that can be relied upon and it seems to be pretty common as a ground for divorce these days. Although on the face of it adultery is a relatively straight forward concept that most laypeople consider that they understand, it can cause confusion and there are many ‘adultery myths’.

For example, adultery refers only to sexual intercourse between a consenting man and women, where one or both are already married to other people. Suggestive texts, flirtatious Facebook messages or being spotted in a dark corner of the pub do not necessarily amount to adultery for the purpose of a divorce petition.

If the adultery occurs before the marriage but you only learn about it after the marriage that will not suffice for the purpose of the petition, unless it continues after the marriage.

Another common myth is that if you petition for divorce based on your other half’s adultery you are entitled to a larger settlement. Wrong. Adultery alone is not regarded as conduct that would be ‘inequitable to disregard’ in relation to a financial settlement. Only conduct that is ‘gross and obvious’ will affect a divorce settlement (that concept in itself is commonly misunderstood…but that is for another article!).

Similarly, people often do not realise that after discovering adultery, you only have six months to issue a petition on that basis. Once that time is up, although you may not have forgotten and probably won’t have forgiven, the Court will consider that you have condoned it and you cannot use that adultery to divorce your spouse.

Pitfalls like the above (and there will be many more) are common and may turn what may have been a straightforward divorce for a professional into something which is very difficult for a layperson to disentangle. Similarly, when it comes to finances and children, whilst a DIY job may seem cost effective in the short term, it may turn into a financial disaster in the long term without specialist and accurate advice.

Lyn Rutherford is a nationally-renowned divorce lawyer who joined Newcastle-based Mincoffs earlier this year over 30 years after setting up Dickinson Dees’ family law division. His involvement in the landmark 1984 Duxbury case transformed the way divorce settlements are calculated.