Whilst it is sometimes necessary for court proceedings to be issued so that financial matters can be resolved by the Court following the breakdown of a marriage, the reality is that Court proceedings are a lengthy and costly process. They also often lead to acrimony and increased hostility between the parties, which can be particularly regrettable where there are young children involved. Careful consideration should therefore be had to resolving matters away from the Court arena where possible. Alternatives to resolving matters by way of Court proceedings include resolving matters as follows:
Directly between the Parties:
Where the parties have managed to retain a relatively amicable and cooperative relationship they may be able to exchange financial information and negotiate a settlement between themselves. Ideally both parties should seek independent legal advice regarding any proposed settlement to ensure that it is fair and meets both parties’ needs. Once a financial agreement has been reached solicitors are likely to be required to formalise the agreement into an approved consent order to make it legally binding.
Where parties need some assistance in exchanging financial information and seeking an agreement regarding the financial matters, mediation is often a very good option. Mediation would involve both parties meeting with an independent mediator who would assist with the financial disclosure process and in helping the parties reach a compromise. Mediation is a flexible process which can involve both parties discussing matters directly with the mediator in the same room, both parties occupying different rooms with the mediator ‘shuttling’ between them, or by way of a conference call. It is usually preferable for both parties to seek their own independent legal advice alongside mediation to ensure that both parties make informed decisions. Any agreement reached should then be formalised into a consent order.
Where parties are unwilling or unable to resolve matters directly or via Mediation, or where it is not appropriate (for example where there is a history of domestic abuse) then the process of financial disclosure and negotiation can be carried out via solicitors on a voluntary basis with a view to reaching a settlement without the need for court proceedings to be issued.
Arbitration is a process in which the parties agree to appoint an arbitrator, who is usually an experienced family lawyer, to decide their case in the same way that a Judge would at Court. Arbitration can proceed in a much more swift and flexible way than Court proceedings with the parties in greater control about the procedure to be followed. The arbitrator’s decision is confidential and binding. Arbitration can be used to resolve both children and financial matters and can lead to matters being resolved in a matter of weeks, rather than many months as you would expect in Court proceedings.
Collaborative Law is a process which, if agreed, involves the parties each instructing their own Collaboratively-trained solicitors. Both parties and solicitors would then sign an agreement committing to resolve issues without going to Court. This means that if an agreement cannot be reached, both solicitors are prevented from acting for their respective clients in Court proceedings. This provides an incentive for an agreement to be reached and negotiations usually take place by way of a series of face-to-face meetings between the parties and their solicitors. If an agreement can be reached then this would be formalised by way of a consent order.
There are various advantages and disadvantages to the above alternatives to Court proceedings and the most appropriate way forward will depend on the particular circumstances of each individual case. Accordingly we would recommend seeking early advice from a family solicitor so that the various options can be discussed with a view to deciding on the best way forward.
If you would like more information please contact 01444 472700 or email firstname.lastname@example.org.
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