Your options upon divorce / dissolution of a civil partnership

While the pandemic has touched upon all of our lives, our individual experiences of it are unique. There have been inspiring instances of individuals and communities coming together to support one another, and a renewed appreciation for the work of NHS and other frontline workers. At the same time the pandemic has without doubt caused immeasurable hardship for some people including, the loss of loved ones, financial worries and a negative impact on mental well-being. The adversity brought about by the pandemic has brought some couples closer together, able to see and appreciate each other’s strengths and qualities during this difficult time. For others, sadly, the financial pressures or lack of support and communication have been magnified with many coming to the very difficult and emotional decision to separate. This was reflected in the Family Justice System’s statistics released in March 2021 which showed an increase in the number of divorces with swathes of people seeking advice from divorce lawyers.

If you are at the stage where you are thinking of separating from your partner it is important to firstly carefully consider whether you can work through your difficulties, possibly with the assistance of a marriage guidance counsellor. Organisations such as Relate have specialist counsellors for assisting you with relationship issues. If, sadly, your relationship has irreparably broken down it is crucial to carefully consider how you wish to approach the divorce / dissolution and resolve matters regarding the finances and arrangements for any children you have. While divorce is never easy, there are ways to try and make it as amicable as possible. We recognise how important this is especially where you have children and the ongoing need to co-parent which will extend far beyond the children’s eighteenth birthdays.

Nowadays there are several different ways to try and reach an agreement upon divorce / dissolution. Traditionally these have been seen as distinct processes, but there has been a move away from this with a merging of the different approaches to find a solution that best fits each individual family. Below is a short summary of the main options:

• Voluntary Negotiations – you can negotiate directly with your former partner or via solicitors. This option may be suitable where you remain on good terms, communicate well and trust each other. It can be a complex process and if you are negotiating directly it would be sensible to have a ‘safety check’ meeting with your solicitor at the outset and at times throughout the process to ensure you understand your rights and the agreement is made legally binding;
• Mediation – involves the appointment of a neutral and impartial third party (the mediator) who helps you both reach a negotiated solution to your family dispute. The mediator does not have any authority to impose a decision on you. Instead, the mediator helps to facilitate discussions, identifies potential solutions and assists you both to reach your own informed decisions;
• Collaborative Law – under the collaborative process, you and your partner each appoint your own collaboratively trained lawyer and you and your respective lawyers all meet together to try and work things out. There is also the ability to involve third parties such as financial advisers or family consultants to assist with negotiations. A key feature is that if the process breaks down, you both must instruct new lawyers so there is a strong incentive for everyone to strive towards reaching an agreement. All the negotiations in collaborative law take place face to face and ‘around the table’ allowing you to control the process and keep correspondence to a minimum;
• Arbitration – you and your partner, usually through solicitors, agree to appoint an arbitrator (usually a barrister or retired Judge), who will make a decision that will be final and legally binding on you. This is similar to court proceedings but can be tailored to what you require and is typically swifter and more cost effective than court proceedings;
• Court Proceedings – this should usually be seen as a last resort. It is a high pressure environment, time consuming and responsibility for the decision is transferred to a third party which you may not want. However, court proceedings are necessary in some instances where for example there has been non-disclosure, attempts to hide assets or non-engagement. Within court proceedings there are various options you can consider which give you some control over the process and usually minimise delay;
  • Private FDRs – during court proceedings there is a negotiation hearing known as a Financial Dispute Resolution (FDR) appointment. At this hearing a Judge would give you both an indication of what they believe the outcome should be. It is also possible to pay privately for a barrister or retired Judge to sit as your Judge for the purpose of an FDR. The key advantages of this are avoiding delays within the court system and securing a Judge who has time to carefully consider the individual circumstances of your case; and
  • Early Neutral Evaluation – this is where a neutral third party (often a judge) evaluates your case at an early stage and expresses a preliminary view on it. Such an evaluation can take place either before or during litigation. This then sets the scene for settlement negotiations.

As mentioned above the main four options should no longer be seen as distinct and are evolving to provide more flexibility. There is now a growing trend for hybrid mediation. This model is based on fundamental mediation principles, but lawyers, where appointed, have a more direct and constructive role in the process. It also encompasses the option for mediators to have separate, confidential meetings with each party (and their lawyers were appropriate) which can facilitate exploring issues, addressing concerns and formulating proposals. Within careful boundaries, this model can allow more flexibility and creativity.

An example of two options potentially being used together is collaborative law and arbitration. If, for example, you have agreed a settlement save for a discrete issue, you could agree to appoint an arbitrator to make a decision on that point.

The various options should not be viewed in isolation and can be tailored to best suit your needs and that of your family. Choosing the right option at the beginning could save you time, money and conflict and lead to good relations post-divorce / dissolution, which is so important especially where you have children. We have a number of collaborative lawyers and a mediator who can assist you if you wish to chose one of these options.

If you would like any further advice as to the different options of reaching an agreement upon divorce / dissolution please contact a member of our specialist family team.