Going through a divorce can be one of the most difficult times in a person’s life, and people often do not know where to start when trying to reach an agreement. Whether for finances, child arrangements, or both, there are multiple options available to divorcing couples and it is important to choose one that is right for you.
Topics to be answered in this article
1. Negotiations between parties
If your separation is amicable, you may be able to negotiate arrangements between yourself and your ex-partner. This can be done face-to-face, through email, or other indirect correspondence, or you may choose to appoint a third party, such as a friend, who can facilitate the negotiations.
In children’s agreements, you may wish to use a ‘parenting plan’ to aid discussions.
Advantages
Reduces costs: Once an agreement has been reached, one of you can instruct a solicitor to draw up a financial consent order (formal document sent to the court which formalises the agreement) without any other legal costs. In arrangements regarding the children, it is not essential for you to instruct a solicitor as a formal document is not required (but you may wish to do so).
Reduces conflict: If you have children and are able to reach agreements between yourselves, this will reduce animosity and, in turn, create a healthier environment for the children.
Disadvantages
Uncertainty: We advise everyone to undertake ‘full and frank financial disclosure’. This requires disclosing all of the marital assets so that a fair division can take place. Often separating couples will reach an agreement without disclosure taking place, so solicitors are unable to advise whether the settlement reached is suitable and meets their needs.
Influence: There is a risk that you may be pressured into making an agreement. It is important to get legal advice on any agreement you reach and remember that every situation is different so you should not be influenced by agreements that your friends, or family members, have reached in their divorces.
2. Negotiations between solicitors
You may both decide to instruct solicitors, or only one of you might feel the need to do so. The solicitors will then negotiate directly with your ex-partner, or their chosen legal representative. Solicitors can put forward offers and counter-offers on your behalf to try to reach an agreement or, in some cases, you may have a ‘round table meeting’, where everyone is in attendance with the aim of attempting to reach an agreement.
Advantages
Professional advice: Your divorce solicitor will be able to advise you on your agreement and whether any proposals made to you are fair. They will also be able to make recommendations as to offers you should make.
Low conflict: By instructing solicitors you can remove yourself from the conflict and have some breathing space to be able to deal with, and process, the issues at hand.
Disadvantages
Costs: If your partner is unwilling to engage with negotiations then your legal costs can increase significantly.
3. Mediation
Mediation involves meeting with a qualified practitioner (known as a ‘mediator’) who will assist you and your ex-partner with reaching an agreement. The mediator is unable to make decisions for you but can assist with communication and negotiations and reality check the proposals made.
If you are unable to be in the same room as one another then there is the option of ‘shuttle-mediation’ in which you are in different rooms and the mediator moves between yourselves.
If an agreement is reached, the mediator will write this into a ‘memorandum of understanding’. In financial agreements, this will form the basis of your consent order. In child arrangements, any agreement reached will not need to be passed to a solicitor as it does not need to be formalised (again, you still may wish to do so).
Mediation must be attempted before court proceedings can be issued.
Advantages
Costs: Mediation may be cheaper than instructing solicitors and there are funding options available to you such as legal aid (in some circumstances) and the family mediation voucher scheme.
Advice: Once you have attended mediation, or between mediation sessions, your solicitor will be able to advise you on your proposed agreement before a financial consent order is signed and submitted to the court.
Flexible: Mediation sessions can be attended online or remotely.
Inclusive: In children disputes, some mediators are trained to speak with the children to ascertain their wishes and allow them a voice in the process.
Disadvantages
Voluntary: Mediation is a voluntary process and therefore if your ex-partner is not willing to engage, it will not work.
Distressing: Mediation may be unsuitable for some victims of domestic abuse.
4. Hybrid Mediation
Another form of mediation is known as ‘hybrid mediation’, this is suitable if you have a complicated set of circumstances in which you need expert advice. You will each be able to meet with your professional(s) (solicitor, accountant etc) and the mediator then goes between each group of you in order to facilitate negotiations and reach an agreement.
Advantages
Advice: Your professionals will have a much more active role and will be able to offer you specific advice during the mediation sessions.
Time: Traditional mediation takes place over a series of sessions whereas hybrid mediation can resolve a dispute within a day.
Disadvantages
Cost: Hybrid mediation is more expensive than traditional mediation, and you will have the added cost for each professional that accompanies you.
Unrecognised: If there is a possibility hybrid mediation will not work, and you will need to issue court proceedings, then traditional mediation will still need to be attempted as hybrid mediation is not a recognised form of mandatory mediation for the purposes of issuing court proceedings.
5. Arbitration
In arbitration, you discuss your issues before an independent third party (arbitrator) who will then make a decision for you. The decision of the arbitrator is binding, and a court order will be drawn up which reflects their decision. Arbitration can be used for disputes relating to finances or children but may not be suitable when you require expert evidence to be adduced, or you are concerned your ex-partner is hiding assets.
Advantages
Flexible: You can ask an arbitrator to consider one specific issue or the dispute as a whole.
Costs: Arbitration can be cheaper than issuing court proceedings.
Time: Arbitration can be quicker than issuing court proceedings.
Disadvantages
Rigid: Unlike mediation, the arbitrator’s decision is final and therefore you cannot re-negotiate, even if you disagree with the decision reached.
6. Collaborative Law
Collaborative law is a type of dispute resolution which is undertaken by trained collaborative lawyers. It allows you to explore concerns that you have following the breakdown of your relationship as well as your legal issues.
Advantages
Recognition: Collaborative law acknowledges that divorce can bring with it a complex maze of issues which extend far beyond those recognised by the law. As well as trying to negotiate child, and financial, arrangements, you can also make sensible decisions about non-legal issues affecting your divorce.
Advice: Other collaborative professionals such as financial planners are able to assist in resolving issues. You will also have support and advice from your lawyer when meeting with the collaborative lawyer.
Flexible: There is no timescale and therefore meetings can work around the family’s priorities.
Disadvantages
Limited: There are limited practicing collaborative lawyers in the UK so it may be hard to find one.
Ramifications: All parties must sign an agreement that commits you to resolving issues without going to court. If you are unable to resolve matters collaboratively, your collaborative lawyer will not be able to represent you at court.
7. Early Neutral Evaluation
In early neutral evaluation, you appoint a neutral ‘evaluator’ to present your case to. The evaluator (usually a solicitor, barrister or retired judge) will then give an indication as to what a judge would order, if it were to go to court.
Advantages
Not binding: The opinion of the evaluator is not binding and therefore, if you do not agree with it, you have the freedom to negotiate a different agreement.
Professional opinion: You will be getting the opinion of an expert in their field without incurring the costs associated with court proceedings.
Disadvantages
Time: It may take a long time for the evaluation to take place, given that the professionals often have other work to complete and very busy schedules. Your solicitor will be able to give you a good indication as to what the court would consider anyway and therefore an evaluator could be unnecessary and a waste of time that could otherwise have been spent negotiating.
8. Court Proceedings
Court proceedings are usually a last resort.
In children disputes, the court works on a ‘no order’ principle, which means it will only make an order if it considers it is better for the child than not making one at all. This means, if you can reach an agreement, the court is unlikely to consider your application. It may be that you can agree who your child is to live with but can’t agree the arrangements for spending time with the other parent; in this instance they could make an order on that issue alone. If an application is listed there will usually be two or more hearings before the court makes an order. There may be more hearings required if the court sees fit, such as when there are allegations of abuse etc.
In finance disputes, there are usually three hearings before the judge will make an order. The court will require disclosure of all marital assets in order to make a decision.
The entire court process is geared towards negotiations and therefore you are encouraged to negotiate an agreement either at court or between hearings. If you are able to reach an agreement, you will not need to attend the remaining hearings.
Advantages
Timeline: The court will impose a timeline in which things are to happen. There could be cost implications if either of you do not comply with the timetable. This consequence makes court proceedings particularly attractive when one party has not been engaging.
No excuses: Neither of you have the option to avoid court, you must engage in the process, or the court will make assumptions as to why you are not engaging, which can work in the other’s favour.
Disadvantages
Costs: Court proceedings can be very costly however there are ways to limit the costs incurred. An example would be to represent yourself at hearings, although this may be daunting if your ex-partner is legally represented.
Time: Court is a lengthy process if all of the hearings are required and may take up to a year to get to the final hearing (depending on the court). To minimise this time, you should ensure you engage in negotiations between hearings.
How can Goughs help?
If you have any questions, or wish to instruct a divorce solicitor, you can book a free initial consultation with one of our experienced family solicitors. We understand that this is often a very tough time and would be more than happy to assist.
