Getting a divorce and separating from your spouse can be a very difficult and distressing experience for many reasons. You will likely have numerous concerns. Here, we examine one of the most frequently asked queries by those about to undergo the divorce procedure: Do I need to go to court?
Regarding the divorce itself, court appearances are extremely uncommon. The new “no fault” divorce procedure prohibits your spouse from contesting the divorce unless they contest the court’s jurisdiction or the validity of the marriage. This was not the case in the past.
Prior to the no-fault divorce procedure, the spouse applying for the divorce could apply for a costs order against the other spouse, effectively requesting the court that an order be made that they pay all of their divorce costs. This was another source of contention in the past. In divorce proceedings, the court will now only issue cost orders in extremely unusual instances. Consequently, there are now fewer opportunities for dispute in divorce proceedings, which drastically reduces the likelihood of court appearance.
Typically, the financial aspects of a divorce are handled separately. Numerous couples are able to negotiate and reach a financial settlement outside of the courtroom, such as with the assistance of attorneys, mediators, or amongst themselves. This would typically mean that you do not have to appear in court unless you are already involved in court proceedings when the agreement is reached. When a financial resolution is reached in this manner, a consent order reflecting your agreement can be submitted to the court along with a summary of your respective financial situations. Typically, the court will review this form of petition on paper in the couple’s absence. In exceptional cases, they may request that the couple attend court, for instance, if they have grave concerns regarding the proposed division of the assets.
If one spouse petitions the court for a financial remedy order (which is a request for the court to handle the financial aspects of their divorce), both spouses may be required to appear in court. This is the most common reason for court appearances in divorce cases. When financial remedy court proceedings are initiated, the case is promptly scheduled for a “first appointment.” This hearing is administrative in nature. However, the need for this form of hearing is increasingly avoided by spouses agreeing to the ‘directions’ required to move the case forward, such as the instruction of a surveyor to value a property.
The second hearing is “Appointment for Financial Dispute Resolution.” This is a negotiation hearing at which both spouses and their solicitors will typically be present. If the spouses are unable to reach an agreement during this hearing, the case will be scheduled for a ‘Final Hearing’ where they will be required to testify in court. This is uncommon, as the majority of cases resolve during the negotiation hearing.
The brief answer is that you do not necessarily have to attend court in order to get a divorce. Despite the fact that it is not always possible to avoid court proceedings, divorcing couples are generally encouraged to attempt to reach an agreement outside of the courtroom. A couple’s agreement on a financial settlement is arguably preferable to a judge’s ruling in the event of a divorce.
If you or someone you know is affected by the issues discussed in this blog post, we can offer you expert legal counsel. For further information, please contact our specialised team.
