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WHAT IS AN UNCONTESTED DIVORCE? 

The introduction of no-fault divorce on 6 April 2022, aimed to make the process of obtaining a divorce much less contentious. It enables couples to divorce solely on the basis that the marriage has broken down, and without needing one person to prove blame on the other. The only way a divorce application can be contested now is if the Family Court of England & Wales is not allowed to deal with the divorce because the couple have no, or limited connections to this country – this is known as ‘not having jurisdiction’.

While getting a divorce may no longer be as contentious, there are other matters such as resolving finances and arrangements for children which can be the subject of contested proceedings. 

In an uncontested divorce, a couple agrees to the divorce and through Alternative Dispute Resolution (also called “ADR”), they reach an agreement on all aspects following their separation, such as arrangements for the children and the division of assets. In this sense, their divorce can be considered an ‘uncontested divorce’ as everything has been agreed.

Although called “alternative” dispute resolution, there has been a strong push to treat court proceedings as the “last resort” and explore ADR first. The options of ADR provide an alternative to the traditional, often lengthier and emotional process of resolving matters through court. 

HOW DO UNCONTESTED DIVORCES WORK? 

There are different Alternative Dispute Resolution options for couples to explore including: 

  1. Mediation;

If you and your partner wish to have the assistance of a neutral third party to help both of you reach agreement on issues, then mediation may be the right choice. The mediator can provide legal information without giving advice, so remains completely impartial and neutral. 

  1. Solicitor negotiation;

If you are having trouble communicating with your partner or, say there is a level of mistrust, then negotiating through solicitors is often very effective. Your solicitor would usually advise you to start by conducting an exchange of financial disclosure and thereafter settlement negotiations would be entered into. 

  1. Collaborative Law;

Collaborative law is when you, your partner and your solicitors meet in a non-confrontational way to try and resolve all matters amicably. The meetings are a 4-way process and everything is discussed in an open manner. 

  1. Arbitration;

In arbitration, you and your partner will jointly appoint a specialist family arbitrator to decide the issues between you. You and your partner will be invited to put forward your position with the arbitrator, who will ultimately make a final decision, known as an award. This process often works well where there are more discrete issues that need to be determined. 

In addition to the above options, if you and your partner are still able to talk directly and you have good knowledge of the assets in the marriage, you could agree to the terms of a financial settlement and where the children will live, between yourselves. You may still need a Court Order but this can be requested by consent without the need to attend a hearing.

PROS AND CONS OF AN UNCONTESTED DIVORCE IN THE UK?  

There are many advantages to ADR, including: 

  • Usually, there is a quicker resolution than dealing with the court system, which is often affected by delays and backlogs. 

  • It’s often less expensive than court proceedings. With funding available for mediation, there may be the option for financial help if you are on low income or where children are involved.  

  • ADR can be less stressful than court proceedings. 

  • It’s an opportunity to help you and your partner stay on more amicable terms as ADR helps keep open channels of communication, which is not usually the case when legal proceedings are issued.

  • Rather than having fixed hearings requiring court attendance, ADR processes can fit around your and your partner’s schedule. 

  • You and your partner have more control over the outcome of your divorce settlement as it allows you both to have autonomy on issues such as child arrangements, finances and property division, rather than leaving those decisions up to a judge. 

  • ADR can result in a settlement that better suits the unique needs and circumstances of you and your partner.  

However, there are also some disadvantages to consider. 

  • ADR may not be possible in cases with high conflict, suspected hidden assets, or complex assets or issues that need to be resolved. 

  • If there is domestic abuse present in the relationship, ADR may not be safe or appropriate. 

  • If you and your partner agree on terms without input or advice from a family law solicitor, this may result in an unfair agreement for one party. 

  • Even if you and your partner reach an agreement between yourselves or at mediation, to make the same legally binding upon the parties you would need to instruct a solicitor to record the agreement in the form of a court order. 

If you are divorcing, it’s crucial for you and your partner to carefully evaluate your circumstances and seek professional guidance before deciding whether, and which, ADR process is the right choice for you. Don’t hesitate to get in touch with our divorce solicitors if you need support with divorce proceedings or other related matters.