From Lawpack's Separation & Divorce Kit.
To answer this question, ask yourself the following:
Are you sure you have proper grounds for a divorce?
Your rights to a divorce are not automatic. You must prove one of the five facts in order to satisfy the legal requirements to obtain a divorce on the grounds of irretrievable breakdown. It's not usually necessary to use a solicitor to draft the petition, although if there are any complex features you may wish to ask a solicitor to cast an eye over it before it's issued. Alternatively, the court staff are often very helpful and will assist as much as they can with simple enquiries.
Is your divorce contested or uncontested?
If you and your spouse both agree that you should divorce, then your divorce will be uncontested. If one spouse is unwilling to divorce, the divorce will be contested by that spouse. In this case, the services of a solicitor will be needed to determine whether there are grounds for divorce.
In an uncontested divorce you don't necessarily need a solicitor unless you disagree on other issues, such as the division of your property or the levels of maintenance (properly known as 'periodical payments' in England and Wales and 'periodical allowances' in Scotland) to be paid by one spouse to the other for the receiving spouse.
Do you have minor children?
The most important issues in divorce are those involving the welfare of any child under 18 (under 16 in Scotland), known as minor children. These issues include child support, parental responsibility and orders for residence and contact (formerly known as 'custody' and 'access'). Because these issues are so important, the court will be concerned that what has been decided is in the best interests of the minor children. Because the welfare and proper care of your children are paramount, you should ask a solicitor to approve the agreements concerning your children that you and your spouse have made. An experienced solicitor can guide you to a settlement that the court will approve as being in the best interests of the children.
Do you have property which can be easily divided?
If your divorce consists of nothing more than deciding who gets the dog and the furniture, then you and your spouse can easily resolve these questions on your own without a solicitor. In order to ensure that you have no further financial claims on each other in the future, it will be necessary for you to obtain a court order to this effect. In Scotland, if no financial order is made on divorce or in a registered separation agreement, there can be no further financial claims on each other in the future once the divorce decree has been granted and the appeal period has passed.
If you own substantial property, you will want to consult a solicitor to make sure that you receive your full entitlement and that the division of property is tax efficient.
Even if the division of your property is likely to be straightforward, you may wish to seek the assistance of a solicitor to ensure that the agreement reached between you and you spouse is recognised by the court as final and not something to be revisited in the future. This is done by setting the terms of your agreement down in a court order which the court will then seal. In Scotland, if the financial agreement is in a registered separation agreement, it doesn't need to be recognised by the court or sealed by the court.
Do you or your spouse have connections abroad?
If either of you have a connection with another country, such as one of you lives there, pays tax there, was born there or owns property there, this means that the divorce proceedings can be brought in that country. This can be advantageous to one of you but disadvantageous to the other. As a result, the choice of country where divorce proceedings are brought can be crucial. Therefore if any of these circumstances apply to you, it's important that you see a solicitor to ensure that you choose the right country in which you issue your divorce.
Do you need or expect future support from your spouse?
If you expect to be financially dependent upon your spouse after the divorce, you may need a solicitor to help you negotiate periodical payments and to make the obligation binding by means of a court order.
You probably don't need a solicitor if:
- you and your spouse both want the divorce and agree on the division of property (if there are pension assets that you have agreed to divide, you should consult a solicitor, as they can only be divided after specific court orders have been made – this is a complex area);
- you have no minor children;
- your assets are not substantial;
- you are not disputing maintenance or child support;
- you are certain that you have the proper grounds for divorce.
Even if you need a solicitor for financial matters, you could still save yourself money by conducting the divorce yourself, seeking advice from a solicitor only as and when necessary and by seeking to agree on matters with your spouse as much as possible.
Law stated as at 1 September 2007
