At DMH Stallard, all our family law specialists are members of Resolution (a community of family law professionals who are committed to a code of practice, promoting a constructive approach to family issues).
This year, the week of 28 November to 2 December is ‘Good Divorce Week’, during which Resolution will highlight the crisis in the family courts and raise awareness of all the ways families can resolve their dispute away from court, where it is safe and appropriate to do so.
In this blog we consider the most asked questions surrounding divorce and financial matters so that people going through it can better understand the process and make informed choices about what method of dispute resolution to adopt.
1. Do I have to go to court for divorce and to resolve financial matters?
The short answer is no; court should be a last resort for many couples.
Most new divorce cases are dealt with online through something known as a portal. This allows spouses to track their divorce application, apply for the conditional (first divorce order) and final divorce order all online. It is a straightforward and administrative process.
On 6 April 2022, ‘no fault’ divorce was introduced. Under the new law, applications for divorce can be made solely or jointly. This welcomes the idea of an amicable divorce and allows for both spouses to discuss next steps together. It is no longer possible to defend a divorce (although a divorce can still be challenged based on lack of jurisdiction or validity) nor seek to recover the costs of a divorce application from your spouse.
Most people assume that to resolve your finances you must go to court and argue about who gets what. However, this is not the case. As a starting point, and if appropriate, couples should be encouraged to discuss financial matters directly with their spouse to see if there is any common ground between them. From these discussions, an agreement is often reached which should then be formerly documented by a solicitor into a legally binding Consent Order. This is important as otherwise the agreement is not enforceable.
If a couple is struggling to reach an agreement directly, they could consider mediation, perhaps supported by independent advice from solicitors, or some other form of alternative dispute resolution (discussed below).
2. How long does court proceedings take?
New divorces can take around six months. However, this is entirely down to how quickly the court processes the application and each stage of the divorce. Also, it is often advisable to wait until financial matters are resolved before finalising a divorce to ensure that marital rights are not lost in the interim.
On average, fully contested financial proceedings can take between 12 and 18 months. This process could be much longer - due to a lack of funding and resources and an increasing number of applications, family courts across the country are under enormous pressure and we are seeing long waits for new applications to be issued and hearings to be listed.
3. How much does court proceedings cost?
Cost is entirely case specific and dependant on the issues in dispute. As a very rough guide, fully contested financial proceedings up to a final hearing could be anywhere between £25,000 to £50,000 plus VAT and Counsel’s fees. Costs could be much more. The general rule is that each spouse will be responsible for paying their own costs unless there has been evidence of ‘litigation misconduct’, such as deliberately misleading the court, failure to comply with court orders or making ill-founded applications.
4. What if I don’t have the funds to pay for court?
There are various funding options which may be available to you such as personal loans or credit cards. Some clients opt for a loan from friends/family. However, it is advisable to have it formalised into a loan agreement, otherwise the court may assume it is a ‘soft’ loan and doesn’t need to be paid (or at least not as quickly). There may also be an option to take out a litigation loan which involves a third-party financing some or all of the legal costs which is secured against an asset, usually the family home, and recovered when the proceedings end. Your solicitor should discuss all funding options with you from the outset of taking legal advice.
5. What alternatives are there to court?
where an independent third party (mediator) facilitates negotiation directly between couples to assist them coming to an agreement themselves. A mediator cannot give specific legal advice, their role is neutral. Any agreement reached in mediation should be written into a legally binding Consent Order drafted by a solicitor, otherwise the agreement reached is not enforceable.
There are many advantages of mediation. It can be carried out at a pace which suits you, it is less expensive than court proceedings, it can allow you and your spouse to have a neutral forum to speak, listen to each other and discuss differing views in a non-confrontational environment.
However, mediation is a voluntary process - you cannot force your spouse to mediate.
Solicitor led negotiation:
there are several methods which can be used as part of a solicitor negotiation, which includes a combination of letter writing, telephone calls and round table meetings.
Letters ensure that there is a written record and allows time for the recipient spouse to reflect on the contents. However, it can take longer to finalise matters and sometimes the contents of a letter can be misinterpreted.
Telephone calls can speed up negotiations, however it is important that there is a written record of what is said, as otherwise, it could result in disagreement between solicitors as to exactly what was said/agreed upon.
Round table meetings are meetings between clients and their respective legal representatives. Despite the name, they do not always take place with everyone in the same room; often clients are in separate rooms and a third room is reserved for negotiations between solicitors. Round table meetings can speed up negotiations as the parties are all in one place. It can also avoid lengthy and costly correspondence. However, some couples need time to process such important decisions about finances and may feel under pressure to agree on the day.
under the collaborative process, each person appoints their own collaboratively trained lawyer, and the parties and their respective lawyers (plus any other collaboratively trained experts, such as Independent Financial Advisers) all meet together face to face to work things out.
Parties and their legal advisers sign an agreement that commits them to the trying to resolve issues without going to court and prevents them from representing the parties in court if the collaborative process breaks down. This means that everyone involved is absolutely committed to finding the best solution by agreement. We have collaboratively trained family lawyers at DMH Stallard.
involves parties agreeing to refer a dispute to an independent arbitrator – who are often likened to a ‘private judge’. Like court, an arbitrator’s decision is final.
Parties get to choose the arbitrator; the process is bespoke and is much quicker than court. However, some parties can be put off by the initial cost as it is necessary to pay for the arbitrator’s time.
If you need further advice or assistance in relation to divorce or other family matter, please do not hesitate to contact our family team.