So how easy is an amicable divorce …really?
It fascinates me how the media always seem so happy to repeat the same old mantra. Yes …you can have an amicable divorce….parties should be able to resolve things together …and so on and so forth. They get “the experts” to stand the story up. There are not only plenty of lawyers but also counsellors, mediators and therapists who are only too happy to trot this out this line, and when I read it I always smile. Because the truth is that, after all these years in the business, I’m not so sure.
You have two parties who no longer want to be married. There might be children caught up in the clash as well. There might be a much loved home that now has to be sold. The standard of living of both parties is going to crumble. Life is not going to be as easy as it was and that’s only the practical things.
There are those pesky emotions as well.
One party might want out. Maybe they’re utterly and totally fed up and just can’t wait to escape. Meanwhile, the other might feel very differently. One party might be having a fling with someone else and flaunting it. One party might be violent and hell to live with. Getting a divorce, cutting the legal ties that bind you, while at the same time recovering from all the bad feeling – in truth all that will be very hard.
‘But you can still have an amicable divorce!’ they all claim gaily. I’m not suggesting for one minute that the people who say so are being disingenuous. They have firmly bought into the mantra of positivity, the idea that it’s better to settle than fight it out in court, even though to me it’s a message light on legal detail and thus a tad patronising. If the parties can’t settle then what are they to think? Presumably: that they’ve failed, they’ve been unreasonable, they haven’t played the game. As I spend more and more time in this job I’m more convinced than ever that it’s nowhere near as easy as they might want you to think. We’ve been conditioned to settle, to stay out of court, to believe that going to court is wrong when the truth is, it’s our democratic right to ask a judge to sort out a dispute if the parties can’t.
So where does this gospel of the “amicable divorce” come from?
Well first of all, it comes from the very top of government. It started to appear in the mid-1990s when legal aid began to move towards the top of the Treasury hit list. That’s when ‘amicable resolution’ first became a fashionable message and since then we’ve continued to hear it regularly repeated in speeches given by politicians, media reports, government-run web sites – they’ve all been pushing the same mantra in full blown technicolour since legal aid was all but abolished in April 2013. Do things amicably, you are urged and you are made to feel something is wrong if you can’t. The family law profession is constantly being urged to advise clients to settle. Keep clients out of court. Do things amicably! Of course this all tallies very conveniently with the government’s desire to keep costs down.
And really! When you’re feeling your most wretched, you’re at your most lost, your world is collapsing in a heap around you and you may have been betrayed by the one person who should never have betrayed you – are these uninvolved people all really telling you to be amicable?! Yes they are.
Couples are heaped with praise if they resolve their divorce “amicably”.
Doesn’t the couple er…perhaps need some help? No problem! They’ll be bundled off to advisers if they need advice, but those advisers needn’t be legally qualified to resolve a very legal problem. The tricky issue of being unable to afford legal aid is thereby sidestepped and another route offered. More concerned people who know how to nod sympathetically in the right place will be offered as a first choice.
If you must have some help, then go visit those nice people who want to help, you’re told. So you head for the Child Maintenance Options website to speak to people who aren’t lawyers but are trained to help sort out practical disputes. Or you try the YouGov site but find only tiny bits of advice – nothing in depth. Or you go to someone who won’t charge you too much as you desperately try and find some offline help.
The CABs and legal advice centres have mostly closed now, so you may well have to pay a mediator who must give you information about the mediation process before you go to court. Yes, unless you are very poor indeed and still qualify for legal aid, your mediator will charge you for the privilege of sitting there to ensure it’s all still amicable. Being unqualified in law doesn’t matter, because, as we’ve recently been told by the Legal Services Board, titles shouldn’t matter.
They will sit there with you, these mediators, looking deeply concerned, all three of you wearing virtual blindfolds and handcuffs as you are urged to resolve matters through mediation amicably. In this la la world, legal advice isn’t part of the process, because ultimately outcome doesn’t actually matter all that much. Instead what counts is that the couple have been helped to resolve matters amicably . These well- meaning and well-paid but still legally unqualified mediators will help you through the process and three cheers for them. They will do so much more cheaply than those fully qualified solicitors or barristers who can of course give you what you need, namely legal advice in a legal process. And make damn sure that all assets are disclosed, that valuations are obtained and all assets are given their proper weight :- according to the law. And distributed in accordance to the law so fairness not only results now and in the future too. But in the la la land of unqualified mediation – at a stage when you are in no fit state to really understand what is going on and you have no legal advice at all…the amicable mantra is pushed and pushed… and pushed. And if it works, well done you two!
Was the outcome legally fair?
It matters not. The couple have resolved matters amicably. And if you are left licking your wounds wishing one or two years later if only, then you will likely get short shrift from a court if you try again when you are feeling better. You made your decision! the Judge will say grimly as he dismisses your case, you chose to rely on an informal valuation because you wanted to be amicable and to boot he or she will also order you to pay costs. That isn’t something your mediator discussed with you at the time as the mediator blithely reminds you that “legal advice” wasn’t part of the deal with them and it’s your fault for choosing the cheaper option and ignoring the existence of fully qualified lawyers. And your McKenzie Friend who sat beside you in court, looking for all the world just like you might imagine a solicitor would look? They’ll sigh and rail against the system as you pay their bill too. It was all very cheap that’s for sure, but ultimately was it truly value for money?
So what should you take away from this post, written as it is by a family lawyer who has been there, seen it all and truly despairs of what has happened to a once truly, staggeringly great legal system, one that used to serve up justice to all of its populace when called upon to do so? Regularly? When going to court to ask a Judge was the usual, entirely normal outcome if a case couldn’t settle?
Here’s an obvious answer. GET LEGAL ADVICE AS SOON AS POSSIBLE. Make sure you see a good lawyer, not a trainee because, with the best will in the world, if you’re paying for advice that must include experience. It’s the worst and falsest economy to go into a legal process and not have sound legal advice. Know your odds. Know if what you want is likely to happen. Everyone getting divorced needs legal advice, so please get some, in the same way you would go and see a good doctor or dentist. Then you will have a far better understanding of your position.
Family law is certainly not as black and white as you may imagine. There are many nuances, and much will depend on your own particular circumstances. The case law on each area is vast. A recent financial update my firm had on just a few cases ran to 26 pages and was a brief run through. Each judgement is there to explain what has happened to others. And might apply to you too. Only a fully qualified legal advisor can guide you through these subtleties. They are complex but they do work and most importantly provide a legally unassailable outcome. And if the qualified solicitor or barrister slips up? They’re fully regulated and insured, so you have ways of obtaining redress.
So get legal advice and keep on doing so. Consider how to pay for your fees. There are plenty of ways. If you can’t afford a lawyer all the way through the case, try to dip in and out. There is no shortage of options, including the court ordering your spouse to do so. Your case should go forward on a level playing field, not a see saw. Don’t be a barrack room lawyer advising yourself. Don’t assume what in fact you don’t know.
Use your appointment wisely. Don’t panic. Don’t turn up and say (annoyingly) “Oh sorry, I forgot to bring my notes and correspondence with me”. Prepare. Ask the questions that are going to take you forward rather than backwards. Don’t concentrate on your other half and what he or she is doing or did. It’s all pretty much water under the bridge by that point. Instead, find out if there’s anything you need to do immediately to protect yourself. In the drive to be amicable about things, important practicalities often get over looked. Foolish agreements can be made on the spur of the moment to sell a house before everything else is sorted. Money can be shifted, pensions can be drawn down and spent. Mortgage debts can suddenly pile up. Make sure your interim needs will be met. An experienced, qualified solicitor will discuss these with you and explain what you need to do to protect yourself and the assets.
Then, discuss what you both might be worth, how you see your future, where you’d like to live, how you are going to manage. The answers might not all be available in a single session with your solicitor, but you should at least leave with some answers and a plan for how to go forward.
Your free time is the right time to think positively. Remember your children are children, not your personal therapists or an audience waiting to watch a real life drama.
Take your time, don’t rush to do a deal. Don’t rush into a sale of your home unless it’s part of your strategy. Don’t rush to court. Be advised. Be wary, be savvy.
But now let me shock you.
How do you stay out of court?
98% of the cases we handle in our firm do settle without a full blown final court hearing. We don’t litigate if there is no point and we advise our clients accordingly. But sometimes you might decide a court hearing is exactly what you want. If going to court is the appropriate option, then do it and don’t think you’ve failed. You haven’t. Discretion plays a big part in a divorce. You must present a legally sound plan to the Judge. If neither of you can sort it out, then let a judge do it for you. It’s not a failure if it’s commercially worth it – and don’t let anyone tell you otherwise.
Remember, after all the thousands of cases I’ve seen, I don’t think there is any such thing as a truly, truly, “amicable” divorce. Too much has usually happened and too much has probably been said. There are bound to be ups and downs, highs and lows for everyone. Couples divorce for the reason they can’t get on together. Life holds other options.
There certainly is a “commercial” divorce. Reaching an agreement out of court that is based on both parties having legal advice and taking a view. It can be done via mediation, with lawyers or even without if you wish, but once you know what you need to make an informed decision, and it needn’t end up in court.
With good legal advice you can make proposals that are the best for you and your future. You can deviate and compromise from that position if you want and as you may be advised. But if that proves impossible, for example because mediation doesn’t work, then if going to court is the most realistic option that too is a decision to make commercially. And if that’s the way to obtain the better outcome then do it. There’s no point regretting your choice years later. Don’t get too hung up, take legal advice on what will happen and how to prepare. Always tell the truth. You will get found out otherwise. And if so advised, let the judge decide. Ask the lawyers for their advice. What do they think? Yes I would say that wouldn’t I? But believe me I know where to go if I need to see a doctor or dentist. I wouldn’t sit in a room paying someone who isn’t a doctor or dentist but might long ago have worked for one, just to look sympathetic and give me no medical treatment. Would you?
And finally, if you’ve got this far, please let me also add, that some couples end up feeling that their day in court, however nerve- wracking beforehand, gave them “closure” and that they needed to have their say in court:- and thus bid good bye to their marriage.
After that, they got on fine.