Do I have to go to court to get divorced?

It’s a question that’s always been asked, but perhaps it takes on more importance in the light of the current pandemic: do you have to go to court to get divorced?

One of the things that scares many people about getting divorced is the prospect of going to court. For many, a court is a strange, intimidating, place that they want to avoid if at all possible. This is entirely understandable – it can sometimes be intimidating even for seasoned lawyers!

The simple answer is that you don’t have to go to court to get divorced. If the divorce isn’t contested, and you and your spouse are able to agree all matters relating to arrangements for children and finances, then it is normally possible to avoid having to go to court.

But unfortunately things aren’t always simple. For a fuller answer we need to look more closely, dividing the process into the divorce itself, children arrangements, and finances.

Going to court for the divorce

This really should be avoidable.

Generally speaking, the only time when a divorce requires a court hearing is when it is defended. But if the party who issued the divorce really wants it then ultimately defending a divorce will not save the marriage, so anyone considering defending a divorce should think very carefully, and take legal advice, before doing so. Defended divorces are extremely rare.

It is also a good idea for anyone who fears that their spouse may try to defend to take legal advice before issuing the divorce, as it may be possible to avoid defended divorce proceedings.

Of course, defended divorces are likely soon to be a thing of the past, as the government intends to bring in a new system of no-fault divorce, under which there will be no right to defend the divorce.

Going to court to sort out children arrangements

As indicated, it should not be necessary to go to court if you can agree children arrangements with your spouse. In fact, if there is an agreement, then normally no court order will even be needed.

But if you cannot agree arrangements then you will need to go to court, and get an order. The proceedings are likely to involve several hearings, at which you will be required to attend.

Going to court to sort out finances

Subject to what we say below, it should not be necessary to go to court if you agree financial arrangements with your spouse.

However, if you do not agree arrangements then you will need to go to court to sort things out, and probably several times.

Even if you do agree, you will still need a court order, setting out the terms of the agreement. Normally, it is possible to get an order without having to attend court. However, the court will only make the order if it is satisfied that the agreement is reasonable. If it is not satisfied, then the judge may require the parties to attend court.

Mediation instead of court

If you are unable to agree arrangements for children or finances direct with your spouse or through lawyers then you can always try to avoid court by going through mediation. If the mediation results in an agreement then it should be possible to sort things out without a court hearing.

For more information regarding family mediation, see here.

Covid-19 and remote hearings

As we mentioned at the start of this article we are, of course, in the middle of the Covid-19 pandemic. With the need for social distancing, the pandemic is one more reason to want to avoid having to go to a court

The family courts are doing all they can to conduct court hearings remotely via telephone or video link, rather than requiring parties to attend court. However, remote hearings are not always possible, so court hearings may still have to take place.