Three ways to avoid court when negotiating a divorce settlement
The breakdown of your marriage is likely to be one of the most stressful events in your life.
Few people want to add to that stress by having to face the pressures of going to court during divorce proceedings. Thankfully, court can usually be avoided if both husband and wife are prepared to be reasonable and show goodwill.
The major issues for most divorcing couples are what happens to the children and how will the marital assets be shared to reach a financial settlement.
These can seem like daunting tasks, but most couples manage to reach an amicable agreement with the help and advice of their solicitors. Once couples realise that the law expects them to be reasonable, to agree to a sharing principle over finances and to put their children’s needs above all else, they manage to settle their disagreements without too much difficulty.
However, when it proves too difficult to resolve differences and reach an amicable agreement, there are still ways to find a solution without having to resort to court action.
This is a voluntary process in which a trained mediator will help you resolve difficult issues in a relaxed, informal way that removes the stress. Mediators, usually an experienced family lawyer, are impartial and so do not favour one side or the other. Their role is to help the couple share information and reach an agreement.
It may be reassuring to know that offers made during mediation are ‘without prejudice’. This simply means they are private and cannot be shown or taken into account by a judge if the talks break down and you later have to go to court.
Once the couple reach agreement, the mediator will record it in two summaries. Each spouse then gives those summaries to their solicitor so they can form the basis of a consent order.
In recent years, mediation has been widely promoted by the government as an alternative to going to court.
Collaborative law is a little more formal than mediation but also seeks to reach an amicable solution.
Both partners select a specialist collaborative family lawyer to guide them through the process.
Each partner signs a Participation Agreement which sets out the areas to be covered. It will also stipulate that if the process breaks down and either partner begins court proceedings, then they will need to find new lawyers to represent them. This is to ensure that everyone, including the lawyers, is committed to achieving a settlement without resorting to the threat of court proceedings if negotiations become difficult.
Once both partners understand the process and are happy with it, they can proceed to four-way meetings, which are attended by the couple and their respective lawyers. With all four participants present there is less scope for misunderstandings and considerable progress can be made.
The approach is non-confrontational and having both lawyers present is usually helpful if one partner feels insecure in the presence of the other, or perhaps fears that they lack negotiating skills and an understanding of the matters to be discussed. Once both sides are happy, the lawyers draw up a formal agreement that can be submitted for court approval. This is usually a rubber-stamping exercise and there is no need for the couple to attend court.
This involves husband and wife agreeing to put their case to an independent arbitrator who then adjudicates and settles any differences. Both sides must agree in advance to abide by the arbitrator’s decision.
It means that you can get a binding decision as you would if you went to court, but it is far less complex and stressful.
Whether you choose mediation, collaborative practice or arbitration it is advisable to have your agreement formalised in a court order so it’s legally binding and enforceable. Your solicitor should be able to arrange this for you without you having to attend court.
Using one of these non-confrontational approaches will help to keep the stress and heartache to a minimum. This is particularly important when parents may need to maintain a good working relationship for several years for the sake of their children.
If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at email@example.com or using the form below.
The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.