It is imperative that you finalise the arrangements in respect of your finances on divorce in a Court order. Without this, both of your claims against each other remain open and any informal agreement you reach, could be undermined or challenged in the future.
Many of my clients often first come to me expecting the finances to be resolved within the divorce application but this is not the case. Whilst they often run in parallel, they are two separate processes (and if you have any issues regarding the care of your children, that is an additional, third process). There are a number of ways to resolve the financial aspects of a separation from your spouse and I will outline the most common methods of reaching an agreement in this article.
Mediation
Mediation can be a cost effective and relatively quick approach to resolving the finances. Over recent years, a lot of emphasis has been placed on seeking mediation as a first port of call and one of the main advantages is that if you can reach an agreement through this process, it is likely to be far less contentious than some of the other methods out there.
Most mediators are family lawyers who have decided to train in this field and usually have a wealth of experience in this area of law. Their role is not to give tactical advice or strategy but to provide a neutral forum where the parties can discuss settlement options and narrow down the issues where they are apart.
It might be that after a couple of sessions you are able to reach an agreement at which point, the mediator will draft a document summarising the consensus you have reached and suggest that you approach a lawyer to draft the necessary documents to submit to a Court for approval.
Mediation can be carried out face to face, online or using ‘shuttle mediation’ (where both parties are in different rooms and the mediator liaises between the two) to reach a result.
Solicitor negotiations
An alternative method of resolving the finances on divorce is to put your case in the hands of a solicitor who will negotiate on your behalf with your spouse’s solicitor.
In circumstances were both lawyers are pragmatic and keen to resolve the issues between the parties, solicitor negotiations can be very effective.
Usually, most solicitors will suggest that the parties complete and exchange a financial statement (‘Form E’) and provide the supporting disclosure before they will then advise on settlement options. If both parties are willing to stick to a deadline and provide the information they are supposed to (full and frank disclosure) the issues can be narrowed and an agreement reached more quickly. Any agreement that is reached will then be converted into a consent order and (accompanied by a statement of information form) submitted to a Judge for approval.
The Court approach
I tend to advise my clients that the Court approach should be a last resort and only used when other options have been explored. This is mainly due to the fact that there are significant delays in the Family Courts in England and Wales and because of the long drawn-out nature of the process and waiting periods for Court hearings, costs will quickly mount up. In a number of cases, however, using the Court’s powers to order people to provide the necessary disclosure or to engage in the process can be the only option. It is reassuring for some clients that ultimately, a decision will be made by a judge (even if it takes a while to get there) and they will move forward with their lives.
Under the Children and Families Act 2014, before making an application to the Court, you will be required (unless you have an exemption), to attend a Mediation Information Assessment Meeting to assess whether or not mediation is an appropriate route to take.
Pros and Cons
Mediation
Advantages
- Sometimes it’s less expensive
- It’s less contentious
- It’s quick
Disadvantages
- Not appropriate if history of domestic violence or controlling behavouiour
- If one person is entrenched in a position, difficult to acheive agreement
Solicitor Negotations
Advantages
- Cheaper than court
- Less contentious
- Quick
- Solicitor is a ‘barrier’ so client does not have to deal with spouse directly
Disadvantages
- Some duplication of costs and time lost if court application later becomes necessary
- No power to make other party engage or provide disclosure
Court Application
Advantages
- Achieves certainty of a decision
- Court has powers to order disclosure
Disadvantages
- Long delays
- Expensive
- Contentious
If you have any issues situations reagrding finances folliowing divorce, feel free to contact our family finance team.