Divorce & Alternatives to Court Proceedings
Are there alternatives to Court proceedings? A Court process can be long and costly. Many separated couples considering what alternatives there may be.
It is important that any financial agreement between a divorcing couple becomes a Court order but if agreement is reached this can be achieved quickly by submitting a consent order to the Court and ask the Judge to make an order in the terms agreed between the parties. It is not a rubber stamping exercise and the Court do consider the information provided and the fairness of the agreement but it is unusual for a Court not to make an order in the terms of an agreement reached between the couple.
This is an opportunity for a couple to meet with a mediator to discuss divorce, finances and their children. Neither are bound by the mediation process and are therefore free to negotiate and consider all of the options open to them.
During the mediation process either can seek ongoing legal advice alongside the mediation. If agreement is reached solicitors will draft this agreement to form a legal documentation.
Even if it isn’t possible to reach agreement on everything in mediation it can still help by narrowing the issues.
Arbitration is relatively new in Family law. Family solicitors and barristers have chosen to qualify as arbitrators which effectively enables them and the Judge in Family law disputes. Couple will need to agree to use arbitration and to appoint an independent arbitrator. The process is then similar to a Court process first with each being represented by their own lawyers.
Arbitration can only be used to resolve financial matters and not for disputes in relation to children.
A couple using arbitration agree to be bound by the decision of the arbitrator. The arbitrated decision is then sent to the Court in order to be made in those terms.
The difference of mediation is that a couple are represented by their own solicitors. Negotiations take place in meetings with the couple and both their solicitors. Throughout the whole process they each have access to legal advice but let discussions and agreement be reached quickly and cost effectively.
Court proceedings to resolve finances take six months to two years to resolve through the Court process. Collaborative law can resolve matters in a few weeks and the timeframe can be agreed by the couple.
To use the collaborative process both must appoint solicitors who are qualified collaborative lawyers.
During the collaborative process if other expert advice is needed (perhaps an accountant or independent financial advisor) these be brought into the process.
PRIVATE FINANCIAL DISPUTE RESOLUTION HEARINGS
In the Court process a Hearing is set before the final hearing itself called a Financial Dispute Resolution Hearing. It is an attempt to negotiate a settlement with input from the Judge. The Judge can give an indication on how some of the issues between the couple can be resolved in Court.
It is possible to have this kind of meeting with independent third parties. This would usually be a barrister who also sits as a Judge. It would therefore be a person who is already familiar with giving indications in Court at FDRs as to how matters might be resolved at a Final Hearing.
If a private financial dispute resolution is set up there can be more flexibility in the timing as it is not bound by the time the Court is open and it can be arranged much more quickly.