Main Image

In search of Settlement

For many people going through a divorce the hardest piece of the puzzle is settling the financial aspects of the divorce. In the vast majority of cases it is this important area that will hold up the final decree of divorce – the Decree Absolute – from going through. This most commonly applies in cases where at least one spouse will want to protect themselves against the loss of spousal benefits in assets such as pensions, which become payable on the death of their spouse. If the Decree Absolute goes through before there is a settlement and the party with a pension dies, the surviving party will no longer be a spouse and will no longer be entitled to receive benefits that they would have received if they had still been married. Therefore parties going through divorce proceedings are advised not to apply for the Decree Absolute until a settlement has been agreed and approved by the Court.

This technical point is not something which clients often will know about. One of the most common questions we are asked as family solicitors is ‘how long will it take for me to get divorced?’ The answer to that question is, in most cases, that the length of time will depend entirely on how long it takes to settle the finances. This makes it all the more concerning that reaching a settlement can sometimes be a tricky path to navigate. Parties can choose to go down one of several routes ranging from mediation on one end of the spectrum to Court proceedings on the opposite end, with a host of options in between the two.

Whilst mediation has been strongly encouraged by the Government it requires a certain set of factors to be in place for it to be a success, these include an equality of arms going into the process and an attitude of good faith and trust on both sides. All too often these factors do not apply. One spouse may have been the ‘weaker’ party during the marriage and this can carry through into the mediation scenario, so that that party feels intimidated or unable to express themselves as well as the other. Equally if there is no trust that your spouse will be open and honest about their finances, mediation may be doomed to failure.

The Court provides an alternative means of achieving a settlement, one which is imposed by a Judge on an application being made by either party. The difficulty here is that the process is long and protracted. Whilst the pressure of Court proceedings can encourage a consensual settlement somewhere along the way, if there is no settlement reached a final hearing will not take place until at least 12 months after the financial application is issued. By that time substantial legal costs will have been incurred on solicitors, barristers and experts.

In our experience there is another route forward which has proved to be successful in helping a large number of our clients to reach that all important settlement without the disadvantages associated with other ways. If you are in search of settlement, do not overlook the less publicised option of a roundtable meeting as a possible way ahead. As the name suggests, this has traditionally been a meeting in which each party and their legal representatives sit round a table to negotiate a settlement. However it does not have to be literally round a table and in a few cases it may be more effective to have the parties in separate rooms, with their representatives meeting in a third area to discuss their respective client’s settlement positions.

A roundtable meeting is part of a voluntary process. Both sides will provide their financial disclosure on a voluntary basis in the weeks before the meeting takes place and will have outlined where they are in terms of settlement. Going into the meeting, both sides will be armed with all of the relevant facts and figures and will have their settlement objectives. The benefit of this is that each side has their solicitor there to oversee the process, ensure that everything that needs to be addressed is addressed in the correct way and that their client’s position is clearly conveyed. Choosing this route can be far less costly than Court proceedings and will not require the parties to wait months for a resolution as they would if they were waiting for the next available hearing date from the Court.

If a settlement is agreed at the meeting it is then just a question of drawing up a consent order to outline the terms of that settlement. This document will then be signed by the parties and sent to the Court for approval. If the consent order is approved it will be stamped by the Court and returned in the post, at which point the Decree Absolute can be applied for and the parties can move forward with their lives.

If you have come up against a road block in your divorce and are finding it hard to reach that elusive settlement, please get in touch to talk through your options and perhaps explore the prospect of a roundtable meeting.

© SA LAW 2017

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.