Divorce is, without question a difficult and sensitive subject for most people. The courts are increasingly expecting the issues around divorce such as the financial arrangements to be decided between the couple and not argued out in court. The divorce rate has steadily risen over the past 50 years, and despite the best efforts, many of the contentious issues surrounding divorce cases are being brought before the court for resolution. The court is necessary to finalise the divorce, financial arrangements and where appropriate the arrangements for the children of the marriage.
From 6 April 2022 the parties to a divorce will not have to find a reason for their decision to divorce The Divorce, Dissolution and Separation Act 2020 will come into effect which heralds the "no-fault" divorce. Decisions involving financial and child arrangements, which are separate to the divorce, will still offer the potential for dispute.
The best option to resolve the disputes that arise during a highly charged divorce is one of the methods of alternative dispute resolution, whereby the disputed issues can be resolved privately between the two parties with the assistance of an independent mediator or arbitrator. In this guide, we will seek to explain the alternatives to court and how divorce disputes can be resolved. The lawyers in Giambrone & Partners' family law team will help you avoid a prolonged costly court case.
Click on a link to jump to that section:
The alternatives to taking your divorce dispute before the court, are as follows:
Mediation can be a calmer way in which you can resolve disputes with an unbiased mediator. The mediator will provide impartial guidance to enable a dispute related to the divorce to be resolved. However, they cannot offer legal advice.
A mediation centre, such as the National Family Mediation Service or the London Mediation Office can be located online for both private client issues and commercial matters. Your mediator may often also be a lawyer, in this role they assume the role of a neutral party to support the discussions aimed at resolving a dispute, from both sides. They are there to help you to reach a mutually beneficial conclusion, acceptable to both parties and ensure that the situation remains calm and controlled. It is far more likely that you will be able to reach a conclusion that suits you both and which you can agree on if the tone of the discussions is composed. Any decision is not legally binding and it cannot be forced upon you.
Arbitration is often applied in financial or child disputes. A qualified arbitrator will be appointed to adjudicate. Arbitration, unlike mediation, permits the arbitrator, following all the discussions, to make a decision that will be final and legally binding. A court for an order will be required to give effect to the final agreement.
The main advantage of arbitration is that it shortens lengthy disputes through the court, and you can speak for yourself during the discussions.
Should you choose the path of collaborative law, both you and the other party in your dispute will have solicitors representing each party present in the room. They will work together to reach a mutually beneficial agreement.
Collaborative law sessions will be prefaced by each party signing a contract undertaking to attempt to reach an agreement. If collaborative law does not lead to a mutual agreement, this is when you will have to revert to the court.
Following The Divorce, Dissolution and Separation Act 2020 disputes related to divorce will focus on the financial and child-related aspects of a divorce. If the dispute is not resolved and is heard in court, your solicitor will put your argument forward as will your spouse’s solicitor. The judge will hear all the arguments and then make a decision that will be an enforceable decision sanctioned by the court.
It is possible that this decision may not appear to be favourable to either party. The judge's decision is based on what the court believes is fair and in the best interests of all parties in connection with the financial decisions, visitation decisions and how the matrimonial property and other assets are divided.
The lawyers in Giambrone & Partners family team are experienced family law experts and will make every effort to help you to avoid lengthy court proceedings where possible. Our highly experienced family law experts will help you to reach an agreement.
You will also be asked if you believe the division of assets is acceptable as well as the financial arrangements and if the custody arrangements are suitable.
In the case of a family business, even one founded by one spouse prior to their marriage becomes an asset of the marriage limited to the extent of the ownership of one or both parties. The interests of any other directors of the business will be considered and accommodated but the overarching consideration is given to the needs of the children of the marriage. How the business impacts on the finances of both of you and your spouse’s finances. Who originally founded the business will be considered, as will the division of labour and the interests of other directors of the company. Often, one spouse will keep running the business, paying a lump sum to the other party, dependent on whether they played a significant part in the business but now is no longer involved.
Family mediation can usually be carried out over one or two hours, whereas hybrid mediation can often take a half or full-day. Solicitors are directly involved with this process, and it is usually used for complex conflicts. It also allows for some confidentiality.
The length of time ADR takes is reliant on how long it takes the parties to come to an agreement – nevertheless, it is often much quicker than going to court.
Family mediation can help you to discuss your issues in a calm, environment. It is can be less heated than in court and will allow you to come to a decision that is beneficial to both of you.
Amicable settlement of disputes arises when both parties agree completely to the terms of their separation.