Finding solutions on separation and divorce - Part 2
In the first part of this article, we introduced six different ways in which the practical aspects arising from separation and divorce could be approached in order to find solutions. In this Part, we will examine each of the six alternatives in some more detail.
There are many different ways to approach the process of resolving the legal aspects of family breakdown. This can include:
1) Discussions direct between the separating partners, followed by legal advice on any agreement reached
It is invariably our advice to clients that they should attempt to agree as much as possible with their former partner. To do so is often a more cost effective method of resolving problems.
One of the disadvantages of this method of solving problems is that, entirely understandably, clients are not familiar with their legal position and do not know what the solution might involve if the case went to court and was finalised by a judge.
For this reason, certainly in relation to financial matters, we always advise a client to take legal advice before embarking on such discussions direct with their former partner. In that way, clients are in a much better position to know the sort of parameters in which they should be working.
We would also recommend that if the parties reach an agreement, a client should ask their solicitor to review it and then to incorporate the terms into a formal legal document. Any agreement between divorcing spouses, which is not converted into a court order (which can usually be made without the parties having to go to court personally), is at risk of being overturned at a later date if, viewed objectively, it was not regarded as being fair.
2) Negotiation between the parties through their solicitors
Although this might be described as the “traditional” approach, it still has a place in resolving problems. In fact, it is likely that it will be the route taken in the majority of cases.
Under this method, each of the separating partners has their own solicitor. Each solicitor obtains from their client details of the issues that have to be resolved − these will typically be those relating to the children and finance.
The solicitor to each party will then consider those details and form a view as to how matters might be resolved.
The clients will then ask their solicitors to embark on a suitable and agreed course of action. The solicitors negotiations will, very often, first be an exchange of written statements and proposals. Often, such written exchanges will be followed by verbal discussions, sometimes at meetings at which the clients are present or at least in the same building.
Once an agreement is reached, either then or after further negotiations, this can sometimes take weeks or even months in complex cases, an agreement is drawn up. To give each party full legal protection, that agreement is usually converted into a court order, made by agreement as part of the divorce (if the parties have been married).
3) The issue of court proceedings
If negotiations between the solicitors do not achieve an agreement, either party (if the parties have been married and sometimes, on some issues e.g. children, even if they have not) can issue court proceedings.
If this happens, the case will eventually come before a Judge who will make the decisions. There will invariably be at least one and sometimes more than one, preliminary hearing.
Such preliminary hearings are to ensure that all the relevant details have been exchanged in advance so that both parties know the material that the Judge will be using in order to make the final decision. In addition, at the final court hearing, each party will be given the chance to make their views known to the court.
Mediation is a process by which the parties each put their point of view on the issue(s) which need to be resolved, either directly to the other party, or, sometimes (for example where it is claimed that there has been physical or emotional violence) to the other party through the mediator.
As the issues that need to be resolved become apparent, the parties will, helped by the mediator, endeavour to close the gap between them, hopefully eventually being able to achieve an agreement.
By the mediation process, the parties remain in control. The mediator is a facilitator, helping the parties to look at problems in various different ways, which can mean that they are eventually able to reach an agreement.
If agreement is reached, mediators will advise the parties each to take legal advice on the agreed terms. If that legal advice is positive, then either immediately or sometimes with amendments, the agreed terms are converted into a legally binding agreement and later into a court order.
Even if the parties are not able to achieve agreement at mediation, the law states that neither party is permitted to start legal proceedings (except to deal with urgent situations) without having first attended mediation.
5) The “collaborative” process
This method of attempting to resolve problems is an amalgamation of the best parts of the first four processes in this list.
Both parties have their own solicitors to advise them throughout. Those solicitors have been specially trained in the “collaborative” process. This process is designed to try to reach agreement in a cooperative spirit without the threat or fear of court proceedings.
Each solicitor and their client has to agree that, if the process does not produce a solution and the case has to go to court, neither solicitor will continue to act for the client in the court proceedings. The purpose of this restriction is that both solicitors then know that they can be entirely frank and for example, make concessions to try to help achieve an agreement, which, however, cannot be referred to in any subsequent court proceedings.
All meetings under the collaborative process are carefully planned and the agendas drawn up in advance. The meetings are sometimes called “4-way meetings” because they will be attended by each of the two former partners and the two solicitors.
If agreement is reached, a formal agreement will be drawn up and signed.
Arbitration is a process very similar to court proceedings. However, instead of the case being decided by a judge, the decision is made by a privately appointed arbitrator. This person is often a retired judge or an experienced and independent solicitor or barrister.
The hearing in front of the arbitrator will have a similar format to proceedings in court but they will be in private (which court proceedings are sometimes not) and will progress at a speed much more to the choosing of the parties. The hearings will usually take place in a neutral, agreed, setting such as a solicitor’s office, barristers’ chambers or a private meeting room.
The parties will have to pay the fees of the arbitrator.
The decision of the arbitrator will still have to be converted to a formal court order but that is a formal process which rarely results in any difficulties.
Which process is best to settle problems between separating partners will depend on a variety of factors. Our experienced family lawyers will be able to advise you on which is most suitable for your case.