There are a variety of methods to be used when seeking to divorce. There is the usual course through the courts. There is that course, coupled with mediation, or arbitration. There is a separate route known as collaborative law.
There are a number of other ways to consider, outside of the scope of this blogpost such as negotiations face-to-face without lawyers, without prejudice discussions around a table without a mediator etc…
Let me start by saying that I am not a great fan of collaborative law. I will qualify my speculative view below in due course.
Aims and objectives:
The objective should always be to exit the marriage as painlessly and as efficiently as possible, with minimum cost necessary and with minimum fuss and disruption between the parties and their children and respective families.
You may or may not be surprised to know that although that should be the objective where rational people are involved, under difficult times of stress and strain, people act irrationally. They drag out issues as one-upmanship. To some, it becomes about scoring point of who can upset the other the most. Who can be more aggressive and hurtful?
Before adopting the irrational approach, know this: Every letter, every email, any time spent, increases legal costs.
You may succeed in undermining, or subduing your ex-partner, but does that make you happy? At what cost emotionally? At what cost financially?
1. The cost:
The court fee to file for divorce is currently £550. That is not the lawyer’s fee. That is the cost of your application being processed by the court.
Legal costs can be fixed on parts of the divorce. Otherwise, estimates of costs are given and time is charged on an hourly basis.
Conditional fees are not currently permitted in divorce cases.
Legal aid is not generally available unless there has been domestic abuse or child abduction. Legal aid could be available for mediation, but is means tested.
2. The basis of divorce:
When a marriage has irretrievably broken down, the usual course for a husband and wife as a first step, is to ‘lawyer up’.
Each lawyer will advise their respective clients whether this is really what they want. Is this really the end? Have they tried marriage counselling?
In English Law, there has to be blame, if they have not lived separately for two years, or one of the spouses has abandoned the marriage for more than five years.
That in itself can cause more of a rift than necessary. It does not exist in the English legal system, that two people have simply grown apart and want to move on.
My general advice is never to become too embroiled or caught up in the reasons cited for unreasonable behaviour. What is broken, and accepted as broken, cannot be fixed.
More cynically, what is broken, can be repaired, but will never be the same again…
One or the other, and sometimes both husband and wife petition for divorce. If the terms are accepted, a Decree Nisi will be pronounced. This is an interim order to say that sufficient grounds have been set out for a divorce to take place.
Six weeks and one day after the Decree Nisi is pronounced, you can then apply for finalisation of the divorce, known as Decree Absolute.
In between these stages, there are a number of other issues to be considered such as contact arrangements between parents, parental responsibility, child maintenance, spousal maintenance, and the financial remedy between the parties.
A case can commence through the court system, but at any stage, alternative dispute resolution can be adopted by the parties.
Legal costs are not generally awarded against one party or another, but the court has a wide discretion to adopt having regard to all of the circumstances.
I favour mediation generally. This is where the parties come together, either with their lawyers, or by themselves, and a mediator usually goes between husband and wife, sat in separate rooms, seeking to define the issues and to resolve matters.
The great thing about mediation is that usually it takes place within a defined time. If going for even half a day, if there is a realist deal to be done, expect to be there for a full day, and by a full day, I mean from say 0800 hrs to well past 2000 hrs.
A deal is only reached where both parties agree and sign a draft financial remedy order. Even then, it has to be placed before a Judge sitting in court for ultimate approval and the making of such an order in such terms.
That means that at any time during the process, either party can exit and leave the mediation setting. The pressure is upon you to agree, but if the terms are not mutually agreed, then there is no deal in place that is enforceable.
Mediation can take place at any time either before or during the matrimonial proceedings. The focus is upon keeping costs to a certain level, knowing that the cost of mediation failing is considerable.
The parties come together and agree to be bound by the decision of an arbitrator. There is finality to this option being adopted, and theoretically it should be cheaper to go down this route, than through the courts. However, once a decision is made, it is extremely difficult to overturn. A date is set to arbitrate, and a finite time is usually given within the framework of the court’s directions, for arbitration to take place. It is usually less formal than a court case.
4. Collaborative Law:
I see the sense in it. The objective is potentially fulfilled, to be out of the marriage with issues agreed, whilst keeping a limitation on costs and time.
The parties may both want to be sensible about matters, but from my own experiences, there is always reason to dispute something, whether it is a picture, or an item of furniture, to arguments as to proceeds from the sale of a house.
From what I have seen, this is rarely the case. People in a stressful position, do not generally adopt their own timetable to get things done. This can lead to long and drawn out meetings with significant periods of stagnation because no-one is regimenting a time-frame. Even if a timetable is agreed, since the collaborative approach is outside of the court process, there is no Judge allotted to deal with failure and sanctions imposed when deadlines are ignored.
Collaborative law allows for other professionals to come together to give information to both parties. It is both a blessing and a curse. What if what is proposed by the collaborative team, is not in line with the way you see things? No decision can be reached.
There is no remedy from a deadlock position other than to abandon the collaborative approach.
There is generally no cap on costs, and costs can soon escalate out of anyone’s control.
These are just some of the main methods to be adopted to reach a divorce settlement.
Professor David Rosen is a Solicitor-Advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is a general commercial litigator and a matrimonial lawyer. He is a certified fraud examiner with memberships at Resolution, RUSI, SAHCA, ACFE, and the Society of Legal Scholars amongst others. He is an honorary professor of Law at Brunel University where he regularly lectures in anti-fraud, anti-corruption, amongst other subjects including advocacy.
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