Alternative options to the Court process
There are many ways that a couple can choose to discuss and agree matters following separation, but for many making an application to the Court becomes the default. Whilst the Court may be required in cases where non-disclosure is a key concern, for most couples there are a wealth of better alternatives out there. The problem with Court applications is that they are slow, costly and highly emotive. On top of this, in more recent years there has also been a push by senior Judges for more family cases to be heard in public, meaning that a member of the press could attend hearings that deal with your family’s finances. Ultimately, using the Court process results in a loss of control of your destiny as if an agreement is not reached before a final hearing, then it is a Judge who does not know either of you, and who often has not even had time to fully consider the papers in detail, that will make a final order and define your future.
All the below alternative options can be used for dealing with issues regarding divorce, finances and children matters, but must have the agreement of both parties to use. If one party does not agree, then they cannot be used. The benefit of a lot of these processes is that you and your spouse / civil partner remain in control of the process and timeframes. Importantly you can also ensure the privacy of your family and the details of your financial circumstances.
Do it yourself! This is where you can sit down, discuss matters and reach an agreement directly with your spouse / civil partner and then ask a specialist family solicitor to ‘sense check’ the agreement and draft it into a formal agreement. It will then be submitted to the Court for approval to make sure that it becomes legally binding.
Solicitors negotiating on your behalf
This is when specialist family solicitors for you and your spouse / civil partner exchange the parties full and frank financial disclosure and then try and negotiate settlement by way of correspondence, telephone calls and sometimes round table meetings. If an agreement can be reached, then it is again drafted into a formal agreement and it will then be submitted to the Court for approval to make sure that it becomes legally binding. This can also be used alongside other ADR processes such as mediation.
Mediation is a confidential and ‘without prejudice’ process where you and your spouse / civil partner agree to meet with a mediator who is a trained negotiator and can assist in facilitating your discussions. The mediator listens to each party and tries to identify the issues / the points that cannot be agreed, and tries to help the couple to find a compromise and way to reach an agreement. This helps everyone to reach practical solutions and make their own choices. There will usually be between three to five meetings of one to two hours each. A mediator is neutral, does not act for either you or your spouse / civil partner, so they cannot give advice and cannot take sides. It is usually recommended that separate legal advice is obtained alongside this process.
If an agreement can be reached, then the mediator will draft the agreement into a ‘Memorandum of Understanding’ and advise both parties to consult their respective specialist family solicitors to draft a formal agreement. It will then be submitted to the Court for approval to make sure that it becomes legally binding. Whilst mediation can be a very effective option, this efficiency is lost if a couple are not able to negotiate in a balanced way with each other. Therefore, mediation should not be used if there is a significant power imbalance between you and your spouse / civil partner, if there has been domestic violence, or if one person feels intimidated or threatened by the other.
This is a confidential process you and your spouse / civil partner will each instruct their own collaboratively trained lawyer and then you attend four-way meetings to go through every detail and see if an agreement can be reached. The beauty of this process is that (i) you retain the control, as ultimately it is you who decide the final agreement and timeframe, (ii) you can think outside the box and be creative with possible solutions and (iii) you are encouraged to participate and speak in the four-way meetings to say why they think a point is fair or unfair. There is meant to be minimal correspondence, save for attaching relevant documents in the disclosure process. This is to avoid the age-old problem of one person misinterpreting the contents of a letter received from the other party’s solicitor and that issue then being blown out of proportion and taking time and cost to resolve. Single joint experts such as accountants, IFA’s, a family consultant, or child specialist can be brought in and attend some four-way meetings if their input is necessary to assist in finding a resolution.
Each person meets with their own collaborative lawyer separately before the first meeting to discuss objectives and what to expect from the four-way meetings. At the first four-way meeting, the parties and solicitors must sign a ‘Participation Agreement’ in which they all commit to try and resolve the issues without going to Court. It also prevents the respective solicitors from acting if no agreement is reached and a Court application has to be made. In that situation, you will each have to instruct new solicitors at different firms. You and your spouse / civil partner also share their respective objectives, and in financial cases, how to obtain financial disclosure so that an agreed schedule of assets can be prepared.
There are usually four to five four-way meetings of one to two hours each, depending on the complexity of the issues to be resolved. The number of meetings needed, and timeframe is dictated by you and your spouse / civil partner. If an agreement can be reached, then the solicitors will document the terms of the agreement so that these can be signed by everyone and submitted to the Court for approval to make sure that it becomes legally binding. In the long term, this process is more cost effective than the Court process. Just as with mediation, the focus in collaborative law is on you having discussions directly, so again this process should not be used if there is a significant power imbalance between you and your spouse / civil partner, if there has been domestic violence, or if one person feels intimidated or threatened by the other.
This is a confidential process where the parties agree the identity of a neutral Arbitrator (who is often a senior solicitor, barrister or Judge) to determine matters. that the selected Arbitrator can then deal with either the entire case, or just a discrete point that the parties cannot resolve themselves or through their solicitors. The parties decide the timing, where the arbitration should take place, whether to have attended hearings or if the issue(s) can be dealt with by each person setting out their position in writing.
It is more flexible than the Court process, and a decision from the Arbitrator will be forthcoming much sooner than in the Court process. As a result, even though you do have to pay for the Arbitrator in addition to your own legal fees, it is more cost effective than the Court process. Arbitration cannot be used in some complex cases where there is a risk that one or other party may be hiding assets and disclosure orders might be necessary from the Court, or if there needs to be evidence from third parties.
After hearing all the facts, the Arbitrator will make their final decision known as an ‘award’. This is legally binding upon the parties. The only way it can possibly be challenged is if the Arbitrator was incorrect on a point of law. The terms of the award are then drafted into an Order so it can be submitted to the Court for approval. The Court operate a fast-track procedure for the approval of arbitration Orders, which again ensures that this process is much quicker than the Court process itself.
Ultimately, the most appropriate process for you will depend on the particular things you want to discuss and the approaches taken by your and your spouse / civil partner. Our expert family team are well used to dealing with all of the above options and can talk you through these in detail as well as outlining which in their view would be best suited for you and your family. If you would like any further advice on any of the above ADR options, then please contact one of our experienced team of family solicitors.