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Do I have to go to court for divorce?

It is important to stress that parties will largely only engage in court proceedings if they are unable to resolve financial matters by agreement. Unless contested, it is quite common for parties to never step foot inside the courtroom, instead, securing their divorce via a post based or online process. In fact, over 80% of our cases do not end up in court.

Financial matters can be resolved voluntarily between parties and an agreement drawn up and put before the court in the form of a Financial Remedy Consent Order, again without either party having to attend a hearing. The problem arises when parties are unable to reach an agreement and therefore one makes an application for a Financial Remedy Order, thus starting the long and stressful divorce process. How then do you avoid such an application?

The basis of settling divorce out of court comes from a joint intention from both parties to adopt an amicable approach and be willing to engage in constructive, productive dialogue recognising that reasonable compromises will have to be made on both sides.

With the intention in place, an ADR approach is a very viable alternative. But what does the term mean?

How to settle a divorce out of court

There are various Alternative) Dispute Resolution (ADR) options which divorcing couples can consider. In its simplest terms, ADR is a way of resolving disputes without going to court.  There are many different methods and approaches that can be adopted when looking to resolve financial matters and achieve an amicable settlement.

Your options include divorce mediation and collaborative divorce, as well as arbitration and negotiation.

  • Divorce mediation (UK)

    Mediation is a structured process where a neutral third-party assists in resolving divorce-related conflict. The trained divorce intermediary will use effective communication and negotiation techniques to encourage parties to actively participate in the process and look at a variety of settlement options. The mediator will initially meet with each party individually to gain an understanding of what they are seeking to achieve. They will then be asked to prepare financial disclosure before meeting again on a joint basis.

    Once the full financial picture has been ascertained then parties can discuss fair and reasonable settlement options. All negotiations and discussions take place on a Without Prejudice basis, which means if matters do not settle and an application to the court is made, the court will not be made aware of the proposals made. This means that parties can freely make proposals without the risk of their “bottom line” being exposed to the court later.

    If engaged in productively and with a genuine desire to resolve matters, the divorce and mediation process can be hugely successful and beneficial for parties. It is particularly helpful for divorcing couples who have children and need to maintain an amicable co-parenting relationship moving forward.

    It is important to be aware however that whilst mediators may also be legally trained divorce lawyers, they are not able to provide legal advice. Both parties should therefore instruct a solicitor to work with them alongside the process and provide ongoing advice as to the suitability or fairness of the proposals being made in mediation.

  • Collaborative divorce (UK)

    The collaborative divorce process entails divorcing couples working with one another and with any other relevant professionals to avoid the uncertain outcome of court. Legal professionals, independent financial advisors, accountants and child specialists and family consultants may all have a role to play. The ultimate aim is to reach a voluntary settlement that meets the needs of both parties and their children. Meetings are conducted in a safe, neutral space, and the removal of the threat of court can play a significant part in diffusing tension.

    When dealing with the financial issues and trying to reach a settlement, both parties engage in four-way meetings with both of their divorce solicitors present to first obtain a full picture of the matrimonial finances and thereafter engage in negotiations. The aim is to ensure that everyone is invested in the process with the clear aim of resolving matters without involving the courts.

    Both parties sign an agreement committing to the collaborative process and the resolution of matters without going to court. The solicitors you instruct in the collaborative process will not be able to attend court on your behalf if, for any reason, the process breaks down and an application to the court must be made.

    Is collaborative divorce a good idea? Parties must be completely prepared to engage in the process and be committed to it. It is essential that parties are transparent and if there is a reason to suspect that one party is being secretive with financial matters there is no power to compel disclosure. However, many couples simply want to get matters sorted out, are willing to co-operate with each other and hope to find solutions in a constructive manner. The collaborative process enables couples to consider the other party’s point of view and share ideas in an open way that will encourage creative and mutually acceptable solutions to be found. Simply listening to what the other party has to say can help cut through any suspicions about motives or agendas.

    Like divorce mediation, being willing to meet and discuss matters face to face is not an easy option. It can be difficult and emotions can run high. If you are able to resolve matters by agreement, with the support of trained collaborative lawyers, both parties are more likely to respect the settlement in the long run. This can lead to a better future relationship—essential if you have children—than one where the Court or an arbitrator has imposed the outcome on you.

  • Arbitration divorce (UK)

    Arbitration is the closest parties will come to the court process without having to go to court.

    What is arbitration in divorce? It is a form of dispute resolution that takes place out of the courtroom. Both parties will appoint a suitability trained and qualified arbitrator; their decision is final and binding upon the parties. This is a viable alternative dispute to the court process for divorcing couples and can address wide ranging issues such as determining an entire financial award down to a narrow issue such as how to deal with a pension. There are also arbitrators who specialise in determining arrangements for children.

    The benefits of divorce arbitration are that parties are able to resolve disputes in a less formal setting. The process is often quicker than court proceedings as parties are not dependant on the court listing and scheduling of hearings, which can often take several months if a court is particularly busy. Parties can also be ensured of continuity, instructing the same arbitrator throughout the process, opposed to court proceedings where you may see a different judge at each hearing. Unfortunately, there is no power to compel disclosure and so arbitration may not be suitable if one half of the couple is hiding assets. The arbitrator can nevertheless draw adverse findings if satisfied that something has not been disclosed and can also award costs.

    You do have to pay divorce arbitration costs as well as the costs of your divorce lawyer. The upside is that you can get a final decision more quickly and in a more comfortable environment than the court. The flexibility and the fact that you will get a final decision more quickly can make arbitration more cost-effective than court despite this cost.

    Divorce arbitrators are typically specialists in family law, unlike a Judge who may have been a lawyer who specialised in a different area of law. The other benefit to an arbitration process is that it is completely confidential.

Divorce negotiation tactics

This is probably the most common way in which most matters are resolved. The process involves solicitors negotiating on divorcing parties’ behalf. If the matter concerns financial arrangements, then there needs to be an exchange of financial disclosure so that there is a full understanding of what resources are available. Negotiating a divorce settlement can then take place over correspondence, by telephone discussion or sometimes via what is known as a roundtable meeting where both parties and their lawyers are present. The difference is that no trained divorce intermediary is used.

If divorce negotiations break down then court or arbitration may be the only alternatives available. It is important therefore that negotiations do not continue for too long if it is evident that an agreement cannot be reached because if you commence either the court or arbitration options too late this will increase the costs beyond those originally anticipated.

With arbitration it may be that the negotiations have narrowed down the issues to only a few points, which the arbitrator can be asked to decide upon therefore saving the costs of arguing in court.  It is important to ensure that a timetable for disclosure and negotiations is set out by the parties’ solicitors from the start to ensure that matters are not allowed to drift over many months without moving forward.

Advantages of settling divorces out of court

The core advantage of ADR is that it avoids the cost, time and effort of court. Besides that, it can prevent further discord and argument, which can be vital in preserving a heathy co-parenting relationship if you have children.

However, both parties must be motivated by a shared desire to be open, transparent, pragmatic and compromising. This applies no matter which route you take. Without such an approach any method of Alternative Dispute Resolution is unlikely to be successful.

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