In short, no. The court is an integral part of the process but you do not have to attend at court unless you require a judge to adjudicate a dispute between you.
Firstly, the divorce process is different from the settlement of your finances (which will be dealt with below).
In order to get divorced, there is generally no need to go to court at all. Whilst you issue your divorce petition with the court, the exercise of reviewing the divorce petition (and acknowledgment of service of the petition from the respondent) is done on paper by a judge sitting at Bury St Edmunds Divorce Centre. If the respondent does not contest the divorce in their acknowledgment of service, and the judge is satisfied on the basis of the divorce petition that the marriage has irretrievably broken down, a certificate of entitlement to a Decree Nisi is generally issued. It comes through in the post (this currently takes on average around 14 weeks).
The application to turn Decree Nisi into Decree Absolute, completely dissolving the marriage, is also done by application to the court on paper.
In an uncontested divorce therefore, whilst it is not possible to get divorced without the court, it is extremely rare to have to go to court in order to get divorced.
For more information on the divorce process, see our handy guides: ‘The legal steps of divorce/ dissolving a civil partnership’ and ‘How to file a divorce petition.’
In order for any agreement you reach as to the division of your finances to be legally binding, it must be approved by a Judge and converted into a court order. If you do not reach agreement you will need a decision to be imposed for you, either by a Judge at the Family Court or by an arbitrator.
Starting up court proceedings involves a court fee for issuing the application. It also means that at every hearing you are represented, you are incurring fees. Further, if you have solicitors, you will also be incurring fees in-between hearings too in order to comply with directions made by the court.
Most couples attempt some form of alternative dispute resolution prior to starting financial remedy proceedings with the court, or adjourn their financial remedy proceedings in order to engage with such processes.
The Divorce Surgery’s approach is a form of alternative dispute resolution. Our ‘One Couple One Lawyer’ method involves the couple receiving joint advice from an expert family law barrister on the likely outcome they would receive if the matter did progress along the court process, and a judge was having to make a decision at final hearing. The process involves an Advice Session with your barrister, in addition to a 15-20 page written advice setting out the most likely outcome for your case.
Many couples reach an agreement after receiving this advice. If you haven’t reached an agreement, you may engage a mediator to help you negotiate a final deal or you may instruct a solicitor to assist with final negotiations.
Regardless of how quickly you settle and through which path, if you both come to an agreement following our session, this will be drafted into a consent order. It is vital any agreement reached is put into a court order for it to be enforceable.
The only engagement with the court will be to get this order approved by a judge. Note that the judge is not a rubber stamp. Whilst it is theoretically possible for a judge to reject the couple’s consensual settlement (for example if the resolution is grossly unfair to one party), in practice this is rare, especially if both parties have received advice from a family law specialist and have therefore entered the agreement fully informed.
We offer a service of drafting your court orders for a fixed fee, or one of you can instruct a solicitor to do it for you. The court order will be sent into the court and if approved by the Judge will be sealed by the court in the same way an order made at final hearing is sealed.
By engaging with The Divorce Surgery’s process therefore, if financial settlement is reached, you may not have to even set foot in court. As with the divorce process, the only involvement the court has is approving the final settlement reached between the parties, which can largely be done on paper, and without attendance of the parties or lawyers.
For more information on The Divorce Surgery’s approach, see our article: ‘Can a divorcing couple share one lawyer?’…