For most of our clients, their priority is to resolve their matter as amicably as possible. It is important for us to do this, where possible, to keep both their legal fees and their stress levels down.
In terms of a divorce (this does not include the elements relating to the parties’ finances or any children), we will normally send a draft divorce petition to the other spouse or his/her solicitor for their comments before sending it to the court. The divorce is then a matter of paperwork and nobody should need to attend court. There are instances when we would not send a draft petition to the other side in advance. That might be because it is important to lodge the divorce petition as a matter of urgency, for example, if there is a ‘jurisdiction race’ and the issuing spouse wants their matter to be heard in the Court of England & Wales.
Financial and children matters are dealt with separately to the divorce process. The court encourages everyone to attempt mediation before making a court application. Mediation involves both parties meeting with an independent third party, the mediator. The mediator does not advise the parties. Instead, the mediator acts as a steer, encouraging and assisting both parties to reach a compromise. A couple will usually have between three and five mediation sessions by which time they will know if they are going to be able to reach an agreement. In between mediation sessions they can take advice from their independent solicitors. The mediation process for financial matters is “without prejudice” (it can’t be referred to in court proceedings) so the parties have the freedom to make compromises and proposals without losing their negotiating position if they cannot reach a full agreement on all points. Once they have reached an agreement in mediation, the parties are advised on it by their solicitors and there may be a little more negotiation.
If a full agreement is reached then that agreement becomes “open” and is binding. A consent order can be drafted containing the agreement and sent to the court. If the judge checking the order considers that it is fair then it will be finalised by the court and is a binding court order which can then be enforced.
Sometimes mediation is not appropriate, for example, where one party feels that the other party might bully or intimidate him or her without the support of a legal representative. In that case, negotiations about financial and children matters can be carried out through solicitors. The parties’ solicitors put forward and respond to proposals in written correspondence. Negotiations may also be done at a round table meeting. Parties usually attend a meeting at one of their solicitor’s offices although a neutral venue may also be agreed. Their solicitors will negotiate on their behalf face to face with the other solicitor. The parties can sit in the same room during the negotiations or they can remain in separate rooms. Again, if an agreement can be reached, the provisions can be put into a consent order and sent to the court for approval by a judge.
Another method of reaching an agreement is through collaborative law. Here, each party will be represented by an independent collaboratively-trained lawyer. The parties will usually sign an agreement at the outset confirming that they cannot use their collaborative solicitors to go to court if the negotiations break down. This means there is a heavy incentive on the parties to reach an agreement otherwise they will have to change to a new solicitor if a court application has to be made. The parties negotiate with their solicitors in face-to-face ‘roundtable’ meetings and there is a strong emphasis on working together at all times for the benefit of both clients.
If no agreement is reached through the methods I have described, there is another option to consider before resorting to making a court application. Increasingly, parties are instructing a “private judge” to make decisions on financial and children matters. This could be in a private FDR (Financial Dispute Resolution) which is for finances only or ENE (Early Neutral Evaluation) for children matters or in arbitration (which can address both the finances and any arrangements for the children). The private FDR is a “without prejudice” hearing at which both parties are usually represented by barristers and which takes place in barristers’ chambers or at the solicitors’ offices. The parties pay a barrister or solicitor to be the “private judge”. Unlike in the court system where judges are pressed for time and there are long waiting lists, a private FDR can be arranged in a matter of weeks and the parties are guaranteed that the private judge has had plenty of time to read the papers in full. At the private FDR or ENE the private judge hears arguments on both sides but not usually oral evidence from the parties direct and gives an indication of the sort of order he or she would make if this was a final hearing. The parties then negotiate through their barristers and solicitors that day and try to reach an agreement. If they reach an agreement, this can be made into a court order.
Arbitration is like a private final hearing, which again is held at barristers’ chambers, the solicitors’ offices or the Institute of Arbitration. The parties will often give evidence orally and be asked questions by each other’s barristers. The arbitrator will make a ruling and the parties are bound by it. The ruling can then be put into the form of an order and lodged at court.
As you can see, there are many options to consider before making a court application in your financial or children case. It is usually always better to reach an agreement outside court. The latter should be a last resort in virtually every case. This ensures that each party’s costs are kept to a minimum and decisions on their future can be taken in an environment conducive to prioritising the family and keeping the conflict in any separation to a minimum.