Divorce -choosing the right process for you
There are many different options available for separating couples and it is important to think about the approach that you would like to take to resolve your matter.
At Consilia Legal we generally favour Alternative Dispute Resolution (ADR) methods such as mediation and try to avoid lengthy contested court proceedings where possible as litigation can adversely impact upon mental wellbeing, is very costly and does not always achieve the right outcome for either party involved.
When deciding how you would like to progress your case, there are a number of different options available to you including:
Do it Yourself
You and your ex-partner may have decided that you are able to reach an agreement directly between you without the need for help from legal professionals.
In relation to matters concerning arrangements for your children, any agreement that you reach between you does not necessarily have to be drawn up into a written document. If both you and your ex-partner are content with the arrangements for your children, you can simply implement those arrangements. If there is an issue in the future, at that point you may wish to seek legal advice or attend family mediation in an attempt to resolve matters and/or document the arrangements.
In relation to child maintenance payments, you are able to make a claim directly through the Child Maintenance Service (CMS) but this is not necessary if you have reached a family-based arrangement directly between you.
In relation to financial matters, in circumstances where you are married, it is important to document the terms of any financial settlement agreed between you by way of a document known as a Consent Order. If you are not married or have decided not to start divorce proceedings, the agreement can be recorded in a Deed of Separation.
You will require a solicitor to prepare the documentation recording the agreement and as detailed below, it is advisable to seek legal advice on the terms you have reached to ensure they are fair.
Where you and your spouse/ex-partner are unable to reach an agreement directly or you wish to seek advice from a solicitor before formalising matters, you may wish to instruct a solicitor to help you negotiate an agreement.
This does not mean that matters need to become acrimonious between you and your ex-partner. Here at Consilia Legal, we are members of Resolution and follow a code of practice (http://www.resolution.org.uk/code/) to deal with matters amicably and promote a constructive approach to family issues. At Consilia Legal, head of our family law team, Laura Clapton is the Chair of Resolution in the North and West Yorkshire region and as a team, we pride ourselves on achieving the best outcomes for our clients in the most cost-effective manner.
If you have not already reached a settlement with your ex-partner, your solicitor will negotiate a settlement on your behalf with your former partner’s solicitor. More often than not matters can be resolved following solicitor negotiations but, if that is not possible, it may be necessary to make a referral to family mediation or make a formal application to the court.
Family Mediation is a process whereby a trained family mediators facilitates discussions between separated couples to help them resolve their family law issues. You can discuss children and financial matters within mediation. The mediator remains impartial at all times and they do not act on behalf of either party. They are unable to provide legal advice, but they can provide legal information. Mediators actively encourage parties, if they wish, to also obtain their own independent legal advice whilst engaging in the mediation process.
At the start of the mediation process, each party is invited to an initial mediation information and assessment meeting (MIAM). If both parties are willing to mediate and the mediator has deemed that the matter is suitable for mediation, then a joint mediation session will be arranged. Sessions generally last 1 to 2 hours and on average three joint sessions take place but you may require more or less depending on your circumstances. A qualified mediator will facilitate discussions between you and your ex-partner either round a table or in two separate rooms.
Following mediation, if a successful outcome is reached in relation to children matters this is then recorded in a Memorandum of Understanding. This is not legally binding but sets out clearly the arrangements you have made.
In relation to financial matters, a Memorandum of Understanding is prepared setting out the proposals reached together with an Open Financial Statement recording the financial information you have each provided within the mediation.
For more about family mediation, please see our dedicated mediation site.
Individuals will often choose to instruct a solicitor to represent them through the court process as the thought of acting in person or negotiating with their former partner can be very daunting. At Consilia Legal we can tailor the advice and assistance to each person’s individual needs whether you wish us to be involved from the beginning to the end of your matter or you wish to instruct us to carry out specific pieces of work. At Consilia Legal we pride ourselves on delivering the best service no matter what each client requires.
Even if court proceedings are issued by you or your ex-partner, our aim will still be to achieve a settlement for you so that any court order can be made by consent. However, if that’s not possible, your case will be heard at a final hearing by a judge or magistrates who will determine the outcome of your matter.
There is a legal requirement for an individual attend a MIAM before making an application to court in relation to most family law cases.
Arbitration is used to determine the outcome of your case in a less formal setting than Court. Both parties need to agree to deal with matters through arbitration before the process can be undertaken and in most cases, parties are still required to have a solicitor to act on their behalf.
Arbitration can deal with family law disputes in relation to finances and some children issues, however, this is not always appropriate if further investigation needs to be carried out in relation to concerns regarding the welfare of children.
The arbitrator will deal with the case from start to finish. If the case cannot be settled, the Arbitrator will make a final decision that will be final and binding on both parties.
People choose arbitration because it a quicker process than formal court proceedings, it is confidential and can be more flexible. You can choose when the hearing takes place, agree on the arbitrator appointed and your case can be heard a lot quicker than current court proceedings.
For further information on the arbitration process, please see the Institute of family law Arbitrators:
- Arbitration – An Introduction Guide – http://www.resolution.org.uk/site_content_files/files/arbitration_leaflet_2018.pdf
In order to use the collaborative law process, you would need to appoint a solicitor who is collaboratively trained.
At the outset of the process, both parties and the legal advisers sign a participation agreement that commits them to resolve matters without court assistance. This means that if you cannot resolve matters in the collaborative process, your legal adviser is unable to represent you at any future court proceedings and you would need to instruct a new solicitor at that stage. The reason for this is to ensure that everyone is committed to reaching a settlement outside of the court process.
The process often involves face to face meetings between the parties and their respective solicitors. You will both have your solicitor by your side throughout the process.
For further information about the collaborative law process, please see the leaflet prepared by Resolution: http://www.resolution.org.uk/site_content_files/files/pod_flyer_2016.pdf
Whichever option you are considering, we offer a free initial consultation to discuss your case and explain each option available to you. You can contact our highly experienced family law team by completing our Contact Form.