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Guidelines for divorcing couples – avoiding the family courts

Avoiding the family courts

There was an important message which came from two different divorce cases in the news recently – do everything you possibly can to agree on arrangements for your divorce finances without involving the courts. In the cases in questions the judges decided that the family hearings could not be held in private, behind closed doors. Instead the public and perhaps more specifically the press could have access and report on the details of the cases. No one wants their dirty linen aired in public, do they?

Mr Justice Holman said he did not want family courts to be secret places. If people are going to use the system to settle their disputes, they must expect it to be transparent and held in front of anyone who wants to watch.

I think there are a few things going on here and the message Justice Holman was trying to send might not be apparent to the lay person. As someone who sees cases in court regularly my take is that he was trying to encourage the parties to settle their disputes outside of the court arena. That way they would indeed remain private. And nowadays there are so many options available when it comes to reaching a settlement – mediation, collaborative divorce, arbitration – and all of these are private and also not reliant on court timetables.

In addition, by allowing the proceedings to be held in public he is potentially making the general public aware of the reasoning and rationale used by the family courts in making their decisions. Perhaps to tackle the headline culture and fake news we sometimes get about decisions made in certain high-profile cases.

Surely no-fault divorce will mean couples don’t go to court?

You’d be forgiven for thinking that with no-fault divorce on the horizon fewer cases would be heard by the family courts anyway, so why are these judges taking a stand now. The reality is that not much will change for this type of high-profile cases – as it’s not the divorce that is in dispute, its’ generally the finances or arrangements for the case of any children.

No-fault divorce will certainly take the conflict out of the process of divorce itself and avoid a couple being forced to list reasons for the breakdown. Taking the blame away from this aspect of divorce is good news in my opinion and should reduce the amount of conflict. Unfortunately, it won’t necessarily change the degree of dispute when it comes to money, unless all parties take a different approach.

A divorce – no fault or otherwise – is simply the legal part of dissolving a union. It does not sort out financial arrangements or arrangements around any children. These still need to be negotiated carefully, sympathetically, with the counsel of experienced family law solicitors. If you cannot decide and you go to court, your relationship could be laid bare for anyone with an interest to pick over.

Guidelines for avoiding conflict in divorce

In our experience, there are some sensible guidelines you can follow which can help you and your partner reach an agreement. Following these may save you time, money and heartache in the long run:

  1. Commit to coming to a solution without court
    If you start as you mean to go on, you are more likely to get to where you want to be. If, at the outset, you and your ex with their legal advisor “sign up“ to the idea that you will reach a deal without going to court, it is likely to be a much more constructive discussion than if one party keeps playing the ”Court!” card when they don’t get what they want. You both have to want to sort this out.
  2. Know what you are fighting over (full disclosure)
    Negotiations can often become protracted – and confusing – if one party knows something the other doesn’t. Full disclosure needs to happen on finances at the start of the divorce process but there will, inevitably, be other things that need to be laid on the table that could affect negotiations. For instance, one party may be planning to move out of the area. This will affect arrangements for children and additional time/cost when visiting the non-residence parent need to be taken into account.
  3. Be realistic
    You may be hurt and want to punish your partner, to “take them for everything they have”. This is unhelpful – and unrealistic. The law would normally start at a presumed 50/50 split of everything in the pot, including all property, savings, pensions etc, and then look at influencing factors. These might be where the main residence will be for the children, has either party significantly damaged their future earning potential by taking time off to raise the children, that sort of thing. The percentage can then be tweaked. Do not think because you have been the main breadwinner, you will get the bulk of the money. Do not think that because you are the ‘wronged party’ you are entitled to compensation in some way. Be realistic. Your legal adviser can help you with this before you start.
  4. Be willing to compromise
    It’s a negotiation. You have to give some ground to win some ground. What is most important to you? What are you willing to concede on? No one is going to get exactly what they want. Remember also that digging in your heels and going to court guarantees nothing. You could ultimately be leaving a judge to decide and he may just split things down the middle.
  5. Use good family lawyers to negotiate
    Not every lawyer is a good negotiator, and not every lawyer is experienced in the intricacies of family law. A lawyer who is great in a court battle may not be so great at the subtler art of gentle negotiation. When looking for a family lawyer, you have to have one who fits for you and who has a track record of delivering on the things you want delivered. By all means, get recommendations from friends and family, but do your research, look at testimonials and talk to them about your particular needs and see how they respond. Is their first thought court, or is their first thought you and what you are trying to achieve?
  6. Look properly at the alternatives to court
    If you really don’t think you can reach agreement with your ex, look at all the other options before you decide to issue in court. A mediator may be able to help you overcome a particular sticking point. They are trained to give both parties space to air their views, whilst minimising the conflict. Often the dispute arises because one party doesn’t feel they are being heard. Another infrequently used option is arbitration (see Arbitration – the modern way to resolve disputes). Widely used in business disputes, arbitration is very similar to the court solution, but this approach has a number of benefits – you choose your own judge, you set your own timetable and your case will be heard in private. There are specialist family law arbitrators who can be appointed by a couple to hear their case privately and give a judgement which can then be drafted into a legally binding agreement.
  7. Get an agreement in writing
    Once you have reached an agreement, get the lawyers to record it in a document that can be lodged with the courts and serve as a lasting record of what has been agreed. Recording each point agreed means you are making progress and avoids anyone holding a previous decision to ransom if things get fraught.

Well-meaning as it may have been, I’m not sure the recent decisions to have cases heard in public will really make very much different to those high-profile cases or help dissolve the myth of things like the “quickie” divorce. Even with a no-fault divorce the process will still take time.

The main message I think, at a time when divorce is on the cusp of changing in the most significant way in a century is, sort out your disagreements without involving judges. You can do it quicker, cheaper and often get better results for both parties.

Andrew Woolley
Woolley & Co, family law specialists

Blog Author - Andrew Woolley

Andrew WoolleyAndrew Woolley

Andrew is the owner and managing partner of Woolley & Co. He regularly offers comments and views on a range of family law issues.

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