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I’m getting divorced. Can I avoid going to court?

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When you say something is ‘going to court’ you can mean one of a number of things:

  • attending a court hearing and showing your face to a judge – properly called ‘having a hearing’ or
  • you can mean that you are sending documents to the court – which lawyers call ‘making an application’ or
  • you can mean that you have given up on negotiations and you want some independent assessment of what is legally ‘reasonable’ to be imposed – signing off discussions by saying ‘See you in court!

Only the first of those – having a hearing – is what non-lawyers usually think of as ‘going to court’ and it is that stressful experience that sensible people want to avoid.

In that, you are not alone!

Can we completely avoid court in our divorce?

A divorce is a court order, so you do have to apply to court to get it done, but this does not mean that you will have to fight it out at a trial.  Indeed, since no-fault divorce was introduced, the circumstances in which any hearing will be needed to get the divorce itself are pretty rare indeed.

Can we avoid the court and deal with our money privately?

It is important to remember that you will only avoid going to court if you are able to come to an agreement with your ex-partner. This may seem like an impossible prospect in the early stages of separation, but many separating couples in England & Wales end up compromising rather than leaving the eventual decision up to the Family Court. Even if you do end up at court in the early stages of proceedings, the court’s own process is designed to encourage you to negotiate throughout and most cases end via agreement rather than a contested trial.

The Government are currently proposing that out of court mediation is made compulsory in some Family proceedings in order to avoid the need for court hearings which due to a shortage of judges and court buildings, they find difficult to ‘list’.  After decades of under-investment, political interference and ineffective processes, increasing the level of compulsion to deal with things without court hearings has become imperative, but lawyers with practical experience of mediation do have concerns.   As ever, ‘the devil is in the detail’ and the laudable aim to reduce in-court conflict and hearings may not be met by the ‘stick’ of sanction for not mediating without well thought-out ‘carrots’ to encourage alternatives.

As you will need to come to an agreement to avoid court, it will be important to make sure that any proposals you make are realistic and capable of agreement. You should seek legal advice from a “Resolution” Family Solicitor to help you through this process.

What is Resolution?

Resolution is an organisation comprised of over 6,500 Family lawyers who have agreed to approach cases in a constructive and non-confrontational manner. If you want to avoid court then you must avoid unnecessary confrontation. All Resolution lawyers have signed up to a Code of Practice that is dedicated to this approach. This does not mean that they will not look after your interests, just that they agree they will work towards an amicable solution where possible.  The principles put into the Code were later adopted into the Family Law Protocol, but Resolution remains a leading representative body seeking to improve family law.

I am trying to avoid court. Why do I need a Solicitor?

Knowing your legal rights will allow you to consider your position from a realistic standpoint and avoid fighting losing battles. If you want to avoid going to court, then it is a good idea to seek legal advice from a qualified Solicitor at the earliest opportunity because you will need to know two things to come to an agreement in respect of finances:

  1. How much money/property is there to go around;
  2. Your legal rights.

Knowing how much money there is means that you can apply your rights to your individual situation. Your Solicitor can help you to get documents and valuations that will give you a clearer picture of the financial position. Once you know exactly what you are dealing with in respect of assets then they can help you to come up with a realistic proposal that might be acceptable to your ex-partner and therefore avoid the expense and the stress of court proceedings.

What needs to be agreed in order to avoid court?

The court is concerned with 3 questions. First is the divorce itself, next the arrangements for any children and finally the finances. This article will focus on financial settlements, but the processes outlined below can be undertaken for any areas of dispute.

What do I need to know before making a proposal?

You will need to know the value of all the assets that you and your ex-partner own, together with information on their earnings. This will include the value of your house (an estate agent’s valuation will suffice – there is usually no need to pay for a surveyor’s valuation), the value of any pensions, businesses, investments, wages and any money that is held in bank accounts. You would both need to disclose this information if the case came to court, so if you want to avoid expensive court hearings then it is important to be open about what you own as it will eventually be brought to light anyway.

What might a realistic proposal look like?

The court must consider several factors when making any financial orders post-divorce. These can be found in section 25 of the Matrimonial Causes Act 1973 and include factors such as your age, how long you have been married, your standard of living, respective incomes and whether you have any children that will require financial support.

Every case is different, so there is no “one size fits all” approach to this. For example, one separating couple may have to consider how they can each have a house large enough to accommodate house 3 young children, while another may be approaching retirement, so they might be more concerned with what pension provision each of them may have.

It is important to remember that the court must decide all cases based on the “sharing principle”, so no matter how the money and property is divided, you will probably end up with around half each. While it is possible that one party might end up with more than the other it is useful to bear this in mind to ensure that your initial idea of what you might be entitled to is not well off the mark. You need to secure the agreement of your ex-partner to avoid court, so it is crucial that any proposal that you put forward considers their housing and financial needs as well as your own.

How might it get resolved without court involvement?

Many people find that it is far easier to live with a settlement that they have been able to agree to rather than having to accept the decision of the court, but understandably find it very hard to talk this through with their ex-partner. There are several ways to resolve matters. The first is that you simply come to an agreement, so once you have put your proposal together, your Solicitor can put it to your ex-partner, either through their Solicitors, or directly if they are acting in person. They can respond with their thoughts or make a counter proposal and you come to a compromise via your Solicitor.

If you are unable to agree at first, then you can look at options such as collaborative law or mediation.

What is collaborative law?

Collaborative Law is an agreed regime/process and not an attitude – many family lawyers adopt a collaborative approach to reaching an agreement without it become the governing contractual regime and then move on to other dispute resolution methods if being cooperative and problem-solving has not produced a result.

Compared to other regimes to work towards settlements, formal ‘Collaborative law’ is a relatively new approach to settling financial disputes post-separation. You will need a Family Solicitor who is trained in that area and able to offer this service, as many cannot. The way it works is that you and your ex-partner will start off by agreeing that you do not want to dispute your financial arrangements in a court setting, and you will then work together with your respective legal representatives to come to an arrangement that is acceptable to both of you and only put the agreed deal to the court for formal approval.

People find it difficult to accept that their first choice of representative – the one who worked with them in the collaborative process – is not allowed to continue to represent them if collaboration does not find a solution and they need to use the court process, but that is a condition of that regime which may explain the relatively low take-up of Collaborative Law, despite its potential benefits.

This approach is particularly suitable to circumstances where the relationship has broken down, but both of you are determined to find a way to work together in the future. Successful completion of the collaborative process allows you to move on without feeling that arrangements have been forced upon you, and sows the seeds for future cooperation. This is invaluable when you have children and will need to find a way to work together in future.

What if private negotiation or other forms of collaboration don’t work?

The circumstances of your separation may be such that it will be impossible to work through future arrangements in a collaborative process – either formal collaboration or by your lawyers working together with that mind-set. If this is the case, then mediation could be a good option for you.

What is mediation?

Mediation is a form of assistance with in-person negotiations in which the priorities of the people involved are brought out by a skilled independent person called a ‘mediator’ and the discussions guided towards reaching an outcome which meets their objectives.   Although people may regard any role of intermediary as ‘mediating’, whether being a listening ear to both or being trusted as an ‘honest broker’, unless it follows certain principles, it will not be true ‘mediation’.

In non-compulsory mediation, as family mediation has been in England since its inception, the mediator derives their authority to guide the discussions solely from the people themselves: they sign an Agreement to Mediate which appoints the mediator and sets out the process/‘house rules’ they will abide by during the process.   Crucially, the end result – a Memorandum of Understanding – remains non-binding until they have had the opportunity to take legal advice and then choose whether to go ahead with that as a binding agreement or modify those terms before it becomes ‘a deal’.  During the process interim Outcome Summaries are usually produced after each meeting to remind people what was said, what was agreed and what they should do before meeting again.

Everything about the process is consensual and indeed some schools of mediation believe that the process and habit of reaching agreements transforms the communications between the people involved and they advocate ‘transformative mediation’ above any kind of conscious problem-solving.

Is mediation compulsory?

Taking part in mediation is not compulsory, although it has been an obligation to consider mediation for some years, even if it does not go ahead.   Speaking to a mediator was a pre-condition of obtaining Legal Aid, except in cases of domestic abuse and presently a Certificate from a qualified family mediator is required in some circumstances before the Court will issue some family-law applications.

It may become compulsory in the near future as the Ministry of Justice has recently proposed that mediation is made compulsory for all “suitable low level” Family court cases. This proposal is under consultation at present. The consultation period ends on 15th June 2023, so it is likely that these proposals will take effect soon.

How does mediation work?

Mediation can represent costs savings by reducing the work that is done by qualified lawyers at their usual hourly charging rates.  It can do so by getting financial information and by finding out what the ‘live’ issues of a case may be.  It can also be used after financial evidence-gathering has taken place and concentrate on the issues and proposals.

Once the parties have disclosed their assets then you can go to mediation, even just for devising proposals.   It can even involve your lawyers, if both parties want them on hand.

That will involve you and your representatives going to a round table discussion with your ex-partner, their representatives and an independent mediator. There will usually be a mix of sessions in the same room and private discussions between the parties and their lawyers.   The mediator’s job is to maintain an unbiased approach and to guide both of you towards a successful resolution. They will look through the  agreed facts/evidence, and examine the possible strengths and weaknesses of your respective positions, determining what the live issues are and helping you devise solutions to help you to come to an agreement. The mediator will not make any ‘rulings’, so your case will only be concluded if you can come to an agreement, but having the input of a trained independent professional can often cut through the fog, by finding the real issues and lead to a successful conclusion to your case.

The outcome can be binding if the parties want it to be as they have their lawyers on hand, but it may be that an interim Memorandum is signed off with some detail to be added before it is a done deal and then put to the court for approval as an Order.

What will happen if mediation is unsuccessful?

If you and your ex-partner cannot come to an agreement then your case will have to go to court to be resolved, but this does not mean that you will have to have a contested trial. The first court hearing (known as an FDA – First Directions Appointment) is concerned with ensuring that all parties have disclosed all their assets, so that all parties can move forward with all the relevant information. At this point, you may find that it is possible to return to mediation or negotiate via your Solicitors. The court will schedule your case to allow time for this to happen if both parties are open to it. It is currently being proposed that judges be given the power to order you to make a reasonable attempt to mediate in order to avoid a contested hearing.

Otherwise, the next hearing will be an opportunity for you to see what a judge thinks the likely outcome might be. This is called an FDR (Financial Dispute Resolution) hearing, where each party will tell the judge what they think the outcome should be (and why) and the judge will indicate what they think would be likely to happen if a trial were to take place. The judge will then invite you to settle the case to avoid going to trial. It is still worth settling at this point because the trial is the most expensive part in respect of legal fees.

What is the best starting point to avoid court?

Although legal advice is set out on the basis of ‘What would a judge decide?’ and lawyers speak of legal issues against the background of what the Court would probably do, that is just to give context to what they have assessed the situation as involving, not because they expect your case to need a judge/the court to decide what will happen.

Most cases settle without the need to have any hearings at all and rarer still a contested trial with an imposed decision.

People need the finality of the court approving their deal so you do not really wish to completely avoid court, as the judge gives your deal the finality it usually needs.  That is usually done as a paper exercise and the judge may approve your arrangements without asking questions.

If you want to ‘avoid court’ then contact a specialist Family Solicitor who  shows the right aptitude and attitude for your case.    They will be able to guide you through the process and help you to come to a settlement that will allow you to save unnecessary costs and move forward with your life with the certainty of an approved settlement.

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