Working it out when things go wrong
The pandemic has placed many pressures on our personal lives, with one in five relationships struggling to survive according to research by University College London. It is a further regrettable statistic from the past two years but, if divorce is inevitable, couples who work together to shape their separate futures are likely to have a more positive experience than couples who go into battle over financial and childcare arrangements.
A major development intended to help change the conversation for couples is the introduction of no-fault divorce, which family lawyers have been campaigning to achieve for years and which is finally nearly here. The Divorce, Dissolution and Separation Act 2020 will come into force in April 2022, replacing the existing Matrimonial Causes Act 1973, which required one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour, with the only alternative being a period of separation: two years where both parties agree to divorce, or five years if one side does not consent.
The new Act allows married couples to issue divorce proceedings without assigning blame, as only a statement of irretrievable breakdown will be needed. It also makes it possible to file for divorce jointly, allowing couples to reflect a mutual agreement to part.
While the Act introduces a minimum period of six months from initiating divorce proceedings to when the final order can be granted, this is unlikely to impact couples any more than the present process because of the severe delays presently affecting the family courts. According to government figures, most cases are taking more than nine months to be heard, which is one-third longer than before the pandemic. And figures like this have led the justice secretary Dominic Raab to say that he wants to reduce the number of family law cases that reach court.
While the minister has emphasised that cases involving safeguarding or domestic abuse should continue to be heard by a judge, he believes that all others should be handled outside the court system, and if this was achieved would mean around half of all cases being settled by other means.
The pandemic has created many resource pressures, with resulting delays or cancellations most likely to affect financial disputes because cases involving the safety of children will be prioritised. Official statistics for April to June 2021 reflect this, with 66,357 new cases started in the family courts, up 14% on the same quarter in 2020 and the proportion of cases going to court with no legal representation for either party stood at 38%, an increase of 24% from the same period in 2013.
Regrettably couples may find themselves feeling confrontational when they separate as the most difficult aspect of divorce is usually agreeing the terms on which you divide joint assets, agree any form of financial maintenance, and how you will care for any children you have together. When this involves complex financial assets, it is even more likely couples will call on specialist input but for anyone needing to reach agreement, getting guidance in the early stages is likely to result in a faster, more cost-effective and mutually agreeable outcome.
Having the involvement of someone with the right expertise can help avoid accusations and blaming from the outset. This is especially important when children are involved. Parents should talk to their children and prepare the ground for separation, while avoiding putting their children in a position where they feel they are being asked to take sides.
There are many ways to resolve issues arising from separation but they are usually centred around talking things through calmly and openly and it may help to have someone sit in to help focus those conversations on positive negotiation. That is why mediation can be an excellent option, combined with legal advice form your respective solicitors outside of the process to ensure that any agreement over assets or your children is fair for you both.
If mediation is not right for you there are plenty of other options to consider including the collaborative law approach, round table negotiations, coming to an agreement directly with your former partner and solicitor negotiations. With the right family lawyer to guide you, without doubt the right approach for you can be found.
In some cases, where an agreement cannot be reached and a decision from a Judge is ultimately needed, arbitration is another alternative to court. An arbitrator is a legal professional with specialist training who will provide a decision and which can be turned into a legally enforceable order. This has the same weight as an order initiated by the court itself but cuts out the waiting time for a case to go to court and also, as a private arrangement once a date is fixed, it will not be pushed aside by other cases with higher priorities.
Many couples have responded to the long delays in the courts by opting for arbitration, knowing they will see results in days instead of months. While it is popular with the wealthy because it keeps financial matters out of the courts, it is often more cost-effective for couples because having a fixed, shorter timeframe can keep the lid on legal fees.
Whatever path you and your former partner choose to take, seeking out the right help and support can make all the difference and help to achieve an outcome that works for you both.
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This is not legal advice; it is intended to provide information of general interest about current legal issues.