Divorce Alternatives to Court

Posted: Friday January 19 2018

By: Abbie Coleman

Christmas is over, the turkey eaten and all the decorations have come down.  After months of planning, at considerable cost both in terms of time and expense, for what we are reliably told is "the most wonderful time of the year", was it really all that much fun?

Divorce – Alternatives to Court

Emma Davison – Solicitor 

Alternatives to Court

Christmas is over, the turkey eaten and all the decorations have come down.  After months of planning, at considerable cost both in terms of time and expense, for what we are reliably told is “the most wonderful time of the year”, was it really all that much fun?

Even before we reached the New Year, Easter eggs had started to fill the shelves and we were seeing advertisements on the television for summer holidays.  All too soon, we will be back around at Christmas again and can you face another year like the last or is it really time to call time on your relationship?

Before you launch on the back of the now renowned media myth that is “D Day – Divorce Day” and end your marriage, take a step back and consider whether this is really the right thing for you to do?

In England and Wales, the number of divorces which are issued generally stands at around the 30,000 mark per quarter according to statistics published by the Ministry of Justice.

Whilst it is true that many people take the first steps towards divorce in the New Year, this is not the “boom” time the media suggests.  Indeed, in 2016, the second quarter of the year saw 30,482 divorce petitions issued compared to 29,195 in the first quarter. Whilst in 2017 this trend was reversed, the difference again was minimal with the first quarter seeing 28,523 divorce petitions being issued compared to 27,291 in the second quarter.

Without a doubt, there is never a “best” time to divorce. There is no shame in having made the decision prior to Christmas that the New Year would bring with it a resolve to divorce only to find that come January it is not the right time for you.

Even if it is your choice to divorce, do not underestimate the huge emotional strain and practical and financial challenges it will bring.  Recognised as being one of the most stressful life events a person can experience, divorce can be, without doubt, something of a “life changer”.

In addition to what can be considerable expense generated from the legal costs of divorce, the process has the potential to impact on virtually all aspects of a person’s life. From their health and well-being to the resulting impact that this can bring on their work and income generation.  From the house where they will live to whether they can then afford that annual foreign holiday or much desired house extension.  From concern for their children and how they will cope with the changing family makeup to the resulting effects on the children’s education and health.  The list goes on, making divorce not a decision to be hurried.

But if the time is right, and all other options have been exhausted or dismissed, consider how best to achieve the divorce and resolve the associated arrangements for your children and the financial aspects of the marriage.  Whilst it is true that such matters can be resolved ultimately via the Court, this should always be seen as a remedy and measure of last resort.

Before involving the Court, look at the other options and, particularly as we approach Family Mediation Week (22nd to 26th January 2018), do not underestimate the power of talking!

If you are struggling to communicate with your partner one-on-one, and would prefer not to embark upon an exchange of solicitors’ correspondence, mediation offers a controlled environment and an effective way to resolve a dispute.  It involves an independent third party – a mediator – whose day job is frequently that of family lawyer. He/she will meet with you and your partner and help you try and reach an agreement on a range of matters from how to divide your finances to the arrangements for your children to the more isolated matters such as on what basis you will divorce to the reasons cited for the marriage failing.  The role of the mediator is to remain impartial. He/she will assist and guide the parties towards what will hopefully be a resolution of all issues in dispute but will not provide legal advice to either party nor will the mediator decide the outcome of the case.

If successful, mediation can be a more cost effective and certainly a more amicable means of dispute resolution.  Afterall, what could be worse than having a third party dictate the division of your money or property or the arrangements for your children as would be the ultimate outcome of a Court application?  Mediation however is not right for all.

Where mediation is dismissed as being suitable or it has occurred but negotiations have broken down prior to agreement being reached, consider instead the options of either collaborative law or arbitration.

Collaborative law offers the next stage on from mediation.  There would still be a series of meetings with your partner but these would also include your respective, collaboratively trained, lawyers who would offer support and advice throughout.  Again though, in the absence of agreement, collaborative law will not decide your case.

Arbitration is a step closer to the Court process.  The parties would enter into an agreement about the issues they want resolving and would agree the identity of a suitably qualified person — an arbitrator — to adjudicate on their dispute.  At the conclusion of the arbitration, the arbitrator will issue an Award (for financial matters) or Determination (for children matters).  This will be the equivalent of a final judgment of a Court and is binding on both parties.  The arbitration process cannot however exclude the power of the Court to make its own orders but it is likely that the Court will endorse Awards or Determinations.

Of course, for some, none of these options will work and inviting the Court to decide the issue will then become inevitable.  Whatever the means of dispute resolution adopted, it is worth bearing in mind that happiness is achieved by making the decision that is right for you and in making such a decision, the value of talking should never be underestimated.

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