Separating: choosing the right process
From 26 to 30 November 2018, Good Divorce Week will focus on how separating and divorcing couples can put their children’s needs first and limit the impact of any conflict. Resolution has timed this week to take place during the period for the government’s divorce law consultation.
All separating couples feel overwhelmed and fearful for the future and most will be “out of sync” emotionally with one having decided that the relationship was over some time before the other. As our divorce law is currently based on fault or on lengthy periods of separation it is perhaps understandable why couples can fall into conflict about who divorces who and on what basis. The hope is that the law will be reformed, not to make divorce easier- divorce is never easy- but to make it less conflictual.
It is always most important at the outset to get expert advice about the different ways to sort things out rather than fall into a process blind. A full meeting about what is most concerning you and what it is that you need to sort out is vital. Your lawyer can then help you select the best way to move forward. David Gray’s family team offers all of the services described below.
Each person appoints their own collaboratively trained lawyer and you, your partner and your lawyers meet together in face to face meetings to work things out. You have your lawyer with their support and legal advice by your side throughout the process. Non-lawyer support (financial, pensions, children) is provided and crucially, you and your partner agree not to go to Court and to resolve things in meetings to avoid conflict.
Mediators help you and your partner to resolve your “separation stuff” by meeting you together and helping you establish what it is you need to sort out and what information you need to do it. Your mediator will then help you find what “felt fairness” would look like for you and your family. Mediation often works best if you also have a lawyer to support you and provide you with legal advice as you go.
In family arbitration, you and your partner appoint an arbitrator (a private judge), who will make a decision that will be final and binding between you on financial and property or children issues. The arbitrator’s decision is then recorded in a court order. This process can be quicker, cheaper and more convenient and reliable than the court system and it is completely private.
Going to Court
An application is sent to the Court and the court sets a timetable for the giving of disclosure of financial information together with a first court appointment. At the first appointment the Court decides how to manage your case. The Court then lists your case for a second where you and your partner negotiate through your lawyers at court to try to reach an agreement. If an agreement can’t be reached, then the Court will list your case for a final hearing at which you and your partner will give evidence. The Judge then makes a final decision which is recorded in a Court Order.
You appoint a family lawyer who negotiates with your partner’s lawyer. Your lawyer will provide you with advice based upon what she or he would expect the result of any eventual court hearing to be. If an agreement is reached a draft order is prepared by the lawyers and sent to the Court to be made.
Choosing the right process at the beginning can save you time, money and emotional energy in the longer term and it is possible to choose a combination of two or more of the above processes if that is appropriate for you and your family.