You do not normally need to go to court for a divorce in the UK unless your spouse has a valid legal reason to dispute your divorce application or if you cannot reach an agreement with them regarding your children, property, and finances. However, even if you cannot reach an agreement with your ex-partner regarding your finances or children, you can still avoid going through the family courts by resolving these matters through divorce mediation, private financial dispute resolution or private arbitration. Such methods are highly beneficial because they tend to be much cheaper, faster and less stressful than family court proceedings.
Under the no-fault divorce law in England and Wales, which came into force in April 2022, a spouse cannot contest a divorce simply because they disagree with it. They can only challenge the divorce application on very limited legal grounds, such as if the UK courts lack jurisdiction over the marriage or if the marriage is not legally valid. In such a scenario, you may need to go to court to seek a resolution. As a result, it is rare for a divorce to require a court appearance solely due to a spouse’s objection.
Do you have to go to court for a divorce involving a child
No, it is not always necessary to go to court for a divorce between spouses with a child. If you have children, it is important to come to an agreement with your spouse regarding child arrangements. Child arrangements include where the child will live most of the time and who else they will spend time with and when. If you can agree with your ex-spouse about arrangements for your child, it is advisable to document this in the form of a Parenting Plan and have this drawn up into a legally binding consent order. This will need to be approved by the court, but ordinarily, you do not need to attend a court hearing.
If you cannot agree on child arrangements, you may need to apply to the court for a Child Arrangements Order (CAO). A CAO sets out where your children will live and how much time they will spend with each parent, among other matters.
To apply for a CAO, you will need to complete the online application and pay a fee. This process can be completed on your behalf by a family law solicitor. The court will then arrange for a ‘directions hearing’ to be attended by you and your partner. The hearing will also be attended by a family court adviser from the Children and Family Court Advisory and Support Service (Cafcass). The matter may be resolved at the first hearing, or subsequent sessions may be necessary. Depending on the nature of the dispute, the judge may then instruct you both to attend mediation or a ‘Separated Parents Information Programme’ to help you find a way to make child arrangements work. If you still cannot reach an agreement, a final hearing will be arranged where the judge will make a decision on your matter and issue a CAO.
Ways to avoid going to court for a divorce
If you cannot agree with your ex-partner regarding your finances or children, there are many ways to avoid going to court, such as:
- Divorce mediation
- Private financial dispute resolution
- Divorce arbitration
Divorce mediation
Mediation involves both divorcing spouses working with a specially trained mediator to find a resolution to a family dispute. Mediators are completely impartial and will ensure that your conversations are confidential. Even if you want to proceed straight to court, before you can apply for a CAO, you will both need to attend a mediation information and assessment meeting (MIAM) to determine if mediation is suitable to resolve the matter. If mediation is not suitable or successful, then you can apply for a CAO or another type of order depending on the requirements, including a prohibited steps order or a specific issue order.
The good news is that mediation is extremely effective, and it tends to preserve the relationship between parties, which can a) ensure that the agreement is adhered to and b) help minimise stress and anxiety for any children from the marriage. It can also provide a faster outcome than going through the often very court system.
Private Financial Dispute Resolution
A private Financial Dispute Resolution (Private FDR) offers an excellent alternative to going through the court system. This method involves you and your ex appointing an independent private judge who specialises in financial family matters (you will need to pay a fee for their services). The private judge you appoint will give their independent evaluation on how your financial dispute should be decided. If you and your ex-partner agree on the decision made, you can have this drawn up by your lawyers into a legally binding document. Private FDRs tend to be available much faster.
Divorce arbitration
Divorce arbitration is different to mediation in that an arbitrator will make a decision on behalf of you and your ex-partner. If you choose this option, you and your ex-partner will need to appoint a specially trained arbitrator. The process is extremely flexible as you can choose to arrange a venue where your matter will be arbitrated, or everything can be completed in writing. In addition, you can use divorce arbitration for part of all of your disputes. Once your arbitrator reaches a decision, it will be put into writing and made legally binding and enforceable.
