You would think a professional lawyer would have a smart answer to such a question. Indeed you might reasonably expect something pithy.
- Forget splitting up and get back together? (until they get that inheritance, at least…)
- Build a new patio? (the police would never think to look there for a missing person)
- Look on the internet? (like online information is always reliable!)
- Ask a mate? (some people know everything)
- Spot which lawyers don’t appear to spend any money on professional advertising? (they will have low overheads and will pass those saving onto their clients in cheaper hourly rates)
What is meant by Divorce in England and Wales?
England and Wales is the common legal jurisdiction for most of the UK population. Scotland has its own laws, as does Northern Ireland. Solicitors are ‘officers of the court’ and that Court is the Supreme Court of Judicature of England and Wales. Technicalities are often important in legal matters, even if to be better understood, good lawyers try to avoid unnecessary jargon.
Technically a ‘divorce’ i.e. an application to end the formal state of marriage – is a separate legal process to sorting out arrangements either about financial matters or children. People think of such things together and rarely distinguish between getting the piece of paper to say they are no longer married and the whole devising of an agreed set of arrangements.
For the purposes of these comments, ‘divorce’ should be taken to mean the whole gamut of things to be sorted out after splitting up, not just the online application to end the marriage, which people can often do without needing lawyers.
When to do that and what to arrange alongside that process is where professional advice can pay dividends.
Can we be sure splitting up is right for us?
Splitting up and reconcilation
By the time people ask a lawyer, it is improbable that they will reconcile, but not impossible, so solicitors are obliged to signpost people to relationship services prior to lodging applications for divorce in the case of formally registered couples.
RELATE and independent relationship counsellors can sometimes enable couples to remain together and even if they cannot ‘save’ the couple relationship, they may be able to help
What is mediation and is it useful?
If you change your mind…take a chance on mediation?
Apologies to ABBA whose separations and splitting up (as couples) led to some poptastic records back in the 1970s and 80s. Doubtless scholars of popular culture will have written learned theses about the relationship of creativity and personal disappointment based on the back-catalogue of Sweden’s Fab Four – perhaps somebody reading this may pen lyrics which resonate in decades to come. Many of ABBA’s songs have themes that apply to other people splitting up, but following the approach adopted in songs may not be the best solution (see ‘Hey Joe’ Hendrix or ‘Smoking Gun’ Robert Cray for obviously inappropriate lyrical directions – more on Robert later!).
Mediation, despite being a well-established dispute resolution technique still has bit of the misunderstood teenager about it and it is NOT funny. Nothing has ever been as misunderstood as mediation and – for the thousandth time – it is not aiming to bring couples back together: that is (resigned sigh) ‘reconciliation’. It is not ‘meditation’ nor ‘medication’ and whilst some transformative mediators are convinced that improved communication is a panacea and that when people recognise their common interest in – for example – the wellbeing of their children – they will re-align themselves with good will for the sake of the children – that is not the universal solution to getting sensible discussions. Sorry peeps, close but no carcinogenic rolled leaves.
Sadly, and I mean that most sincerely folks, many people appear incapable of behaving reasonably when dealing with the person from whom they are splitting up. Getting clearer communication from some people can reveal a naked hatred and utter unreasonableness which is far from pretty. Mediation, in which a neutral person facilitates discussions without directing those involved to a particular solution/outcome can be productive and can even work with people who start out very unhappy or angry. However, it does require that informed self-interest can overcome enough of the emotional barriers to adult reasoned discussions. A skilled mediator can often spot when mediation might have success and where that is improbable.
How can mediation save money when divorcing?
Money Money Money
Mediation was part of the government’s plan to reduce the net spend on helping people with legal problems. As such, the bean-counters realised that what they could negotiate to pay mediators was considerably less than the hourly rate of lawyers and even if not that much lower, having one mediator (they scrapped the previous norm of having two mediators) was cheaper than paying two lawyers. As a result, family Legal Aid was doomed.
There is logic to the fundamental principle that having one trained person investigate a situation will be cheaper than two. When we say ‘investigate a situation’ it is in the sense of getting some neutral evidence as to the circumstances the people are in and establishing what they think they want/need and what their priorities are. Mediators are not Inquisitors and Spanish or not, a mediator’s role is to help the people splitting up look at the facts and issues themselves. They do however often have a comfy chair as the ergonomics of the mediation space play a part in the mind-set of the discussions.
Whilst never ruling on anything, the level of ‘direction’ or ‘guidance’ that may be appropriate can be partly decided by the parties and the mediator’s role is set out in the Agreement to Mediate which makes it clear that the mediator is not an arbiter and does not make the decisions as to what the settlement should include in any detail. The only decisions that the mediator is likely to make are those about process and how the parties go about disclosing their finances and looking at their options.
Mediators often use the same forms to establish the financial background as are used in the courts. The court uses Form E, which at approaching 30 pages (plus reams of supporting evidence) is not a simple summary.
That process of getting the Form E information is a potential money-saver from the use of mediation.
The first phase of financial negotiations is financial disclosure, whether in mediation or in solicitor-led discussions. With mediators, some of whom are family lawyers or have been, adopting the use of Form E to focus the evidence-gathering, if that exercise is conducted in mediation, then any family lawyer picking up the case has a very good head start. Potentially that cost saving is hundred or even thousands of pounds, depending on the complexity of the situation.
What are the other advantages of using mediation, other that reducing the cost of getting financial disclosure?
What’s the name of the game?
In some situations, due to people knowing the facts and being open about the background, the benefit of mediation are not in getting disclosure, but something more elusive: what are people looking for / expecting as the outcome?
It is very difficult for people splitting up to be entirely reasonable as to distinguishing between ‘wants’ and ‘needs’. A small child may say the ‘need’ a present from a shop, which as adults we would dismiss as being a ‘want’.
It is not always as simple as that – Marslow’s Hierarchy of Needs often represented by a triangle or pyramid shows the practical life-sustaining essentials at the bottom, but more mental and emotional aspects of need higher up. Somebody ‘needs’ somewhere to live and food to eat, but excluding some level of social life or developmental educational opportunity may also validly be a ‘need’. It is for that reason – that just being alive is not enough to be meeting all their needs: the factors considered by a judge are partly situation-dependent: Heather Mills may be a non-drinker, but as part of her income needs, it was not inherently wrong to budget for having a wine cellar so as to cater for drinking guests, even if £39,000 per year (yes p.a.!) might have been regarded as a tad extravagant…and indeed was one of many elements found exaggerated by the judge, who helpfully published his reasoning at the end of the case.
Heather Mills and Paul McCartney were not a former couple who were able to agree reasonable provision for ‘need’ in mediation, but finding out that somebody has views about reasonableness that are so far from the other’s does at least raise the issues. Hopefully once experienced family lawyers become involved some sensible compromise within a range that a judge can approve will be found.
So identifying the issues is another way that mediation can save money – better to know that there is a gulf of expectation than to expect that the person is looking for something in the ‘normal’ range.
Sometimes when somebody needs a reality check negotiation will be a waste of effort and expense and getting a judge to offer an interim indication at the Financial Dispute Resolution Hearing (FDR) will make the breakthrough. It is occasionally less expensive to get a situation into the court system sooner rather than later if there is a chasm between their views that their lawyers cannot bridge.
Like ABBA, Robert Cray’s songs have some interesting messages about splitting up: for a guy whose narrators make bad decisions in their relationships, amongst cheering things that are not enough, he says “tell me a boat full of lawyers just sank” – perhaps he realised it doesn’t wipe out his liability for legal fees…
Saving money when you have retained a family law solicitor for proceedings when splitting up follows in Part 2 here.