- Can the divorce process be amicable?
Can the divorce process be amicable?
Can the divorce process be amicable?1st December 2020 - Published by Kuits family team
Coming to the decision that your marriage has irretrievably broken down can be stressful enough in itself, without even giving thought to the legal implications.
To mark Resolution’s “Good Divorce Week”, family Solicitor Ayesha Griffin shares tips on how you can divorce without the hostile court room drama that the television might have you believe is commonplace:
I have attended a lot of weddings over the past few years and when speaking to my married friends I am always surprised to see how many of them seem unaware that their marriage creates financial ties and responsibilities between them. This can cause much distress on separation if one spouse expects an asset to remain solely theirs, such as an investment property, and the other spouse makes a claim to it.
You should take advice from a legal expert at the earliest opportunity to find out exactly what your rights and responsibilities are and what your options are likely to be moving forward.
If you haven’t taken the plunge into marriage yet, make sure you are fully educated on this prior to your marriage as a pre-nuptial agreement, setting out your intentions on separation in advance, may save lots of heartache (and cash!) in the future. If you fall into the “oops but I already got married” category, a post-nuptial agreement can deal with this in a similar way.
Talk to each other
When you are separating, if you are still on good terms, it is a great idea to start off by sitting around the kitchen table and discussing what you each want to do. This method does require there to be some ongoing trust between you, and may be tricky if there are complex financial assets involved, but is a great way to get the conversation started and you might be surprised what you can agree on yourselves.
You should always supplement such discussions with a conversation with your solicitor to discuss how your agreement can be made legally binding.
You might have got nearly all the way there with your kitchen table discussions but there are a few niggles that you can’t quite agree on. A cost effective and way of resolving this is to make an appointment with a mediator who will be able to listen to both of your points, look over your financial information, and then offer practical solutions and suggestions for how you might move forward.
Spouses may often ask their solicitors to exchange financial disclosure with the other spouse prior to the mediation process getting started to ensure a full picture of the financial situation is on the table ready for the first meeting.
You can retain your solicitor throughout the mediation process to check again legal points with them, as the mediator is unable to offer legal advice, and if an agreement is reached during mediation your solicitor will convert this into a legally binding agreement for you.
Using a solicitor
In situations where your views of what should happen are quite far apart, or where there are substantial or complex assets, kitchen table and mediation might not quite get you where you want to be. Once you and your spouse have exchanged financial disclosure, your respective solicitors will ask any questions necessary to clear up anything that seems unclear, and will then talk through various options for settlement with you before you each begin to make offers, usually via your solicitor.
A “roundtable” meeting is a great way to focus on negotiating and resolving your finances during a single sitting without the need for ongoing correspondence. This is like sitting at your kitchen table but having your separate legal representatives present with you to help with the discussions and advise you on the impact of any agreement and any complexities faced. You can even hire an independent experienced legal professional to sit in and listen to each spouse’s points and to get an idea of what they would order if they were the Judge in charge of deciding how your finances should be divided.
If you want to avoid the court process, but feel that the decision really needs to be taken out of your hands by a family law expert who truly knows your case, you can both agree to instruct an arbitrator who will listen to your arguments, and look at your evidence, before making a legally binding decision for you. You can use this method to settle the whole case, or just where there are discrete points that you couldn’t resolve between yourselves or via mediation/solicitors.
Using the courts
If all else fails, an application to the court may become necessary. This is generally regarded as the very last resort, though it may become necessary where one spouse is simply not engaging in the process of resolving the finances outside of court, or where you have concerns about the truthfulness of their disclosure etc. Having structured a court timetable in place can sometimes give the parties the confidence and the push they need to get matters moving.