25 January 2022

Working it out when things go wrong

by Lauren Rigby of Surrey-based solicitors Howell Jones

The Covid-19 pandemic has undoubtedly increased the pressures on our personal lives and, according to research by University College London, as many as one in five relationships are struggling to survive.  Although this is another regrettable statistic from the past two years, if divorce is inevitable, couples who work together to shape their respective futures are likely to have a more positive experience than couples who battle over the financial and childcare arrangements.

A major development intended to help change the landscape for divorcing couples is the introduction of the ‘no-fault’ divorce.  The Divorce, Dissolution and Separation Act 2020 will come into force in April 2022. It will replace the existing Matrimonial Causes Act 1973, which requires one party to prove their partner is at fault through adultery, desertion or unreasonable behaviour, with the only alternative being a period of separation of two years where both parties agree to divorce or five years if one party does not consent.

The new Act allows married couples to issue divorce proceedings without attributing blame, as all that will be required under the new regime is a statement of irretrievable breakdown.  Most notably, it will also be possible for couples to file for divorce jointly, allowing the decision to divorce to be reflected as a mutual agreement.

Although the new Act requires there to be a minimum of six months between initiating divorce proceedings and granting the final order, this is unlikely to impact couples any more than the present process because of the severe delays currently affecting the family courts.

According to government figures, most cases are taking more than nine months to be heard, which is one-third longer than before the pandemic. It is figures like this that have led Dominic Raab, justice secretary, to say that he wants to reduce the number of family law cases that reach the courts.

Whilst Mr Raab has emphasised that cases involving safeguarding or domestic abuse should continue to be heard by a judge, it is his view that all others should be handled outside of the court system – which would mean around half of all cases being settled using alternative methods.

The pandemic has put a huge strain on court resources, with the resulting delays or cancellations most likely to affect financial disputes (due to cases involving the safety of children being prioritised).  Since the cuts to legal aid in 2013 there has been a fall in the use of mediation by separating couples, instead they are using the courts to settle their divorce disputes as, without professional guidance, many couples are not aware of the alternatives – putting more pressure on the already overstretched court system.

Official statistics for April to June 2021 reflect the increased use of the court system, with 66,357 new cases started in the family courts during that period (up 14% on the same quarter in 2020),  and the proportion of cases going to court with no legal representation for either party stood at 38% which is an increase of 24% from the same period in 2013.

It’s understandable that couples may find themselves feeling confrontational when going through a divorce. The most contentious aspect is often agreeing the terms on which the parties will divide joint assets, determining whether any form of financial maintenance should be paid, and how they will care for any children they have together.  Where there are complex financial assets couples usually seek specialist input from the start, however, for any separating couple needing to reach an agreement, getting guidance in the early stages is likely to result in a faster, more cost-effective outcome which is mutually agreeable to the parties.

Involving a professional with the right experience and expertise can help avoid accusations and blaming from the outset, reducing animosity and preserving a civil relationship between the parties – which is particularly important when there are children involved.  Parents should talk to their children and prepare the ground for separation, while taking care to avoid putting the children in a position where they feel they must take sides.

Mediation should be the first port of call for separating couples – unless there are worries of bullying or violence from a former partner.  Talking things through calmly and openly is always best, and it often helps to have an independent, trained mediator sit in to help focus those conversations on positive and effective negotiation. Mediation isn’t just for the separating parties – children can also be involved in the discussions (provided it is appropriate to do so), particularly around decisions concerning where they are going to live and how often they are going to see the other parent. Expert input can also ensure that any agreement over assets or arrangements for the children is fair for both sides.

Arbitration is the main alternative to court if separating couples are unable to come to an agreement through mediation.  An arbitrator is an impartial legal professional with specialist training. During arbitration the arbitrator will hear submissions on behalf of both parties in order to decide how to settle the issues in the case. The arbitrator will then send their decision to the court so it can be drafted into a legally binding and enforceable order.  This would have the same force as an order initiated by the court itself but cuts out the lengthy waiting time for a case to be listed and heard by a judge. Additionally, as it is a private arrangement, once a date is fixed it will not be pushed aside by other cases with higher priorities.

Many couples have responded to the long delays in the courts by opting for arbitration, knowing that they will see results quicker than they would if they waited for their case to be heard by a judge.  Whilst it is popular with the wealthy, because it keeps financial matters out of the courts, it is not exclusive to high net worth couples and is often a more cost-effective alternative to court as, although it is privately funded by the parties, a fixed, shorter timeframe can help keep legal fees from spiralling.

Whichever route is taken, seeking the right advice and support from the outset can make all the difference in helping parties come through the divorce process with a sense of a positive resolution, where everyone has an outcome that works for them and feels fair.

Meet Lauren Rigby:

Lauren Rigby holds an LLB (Hons) from the University of Southampton and completed her Legal Practice Course with Masters at the University of Law, Guildford. She qualified as a solicitor in 2019 at McMillan Williams (now Taylor Rose MW) and joined Howell Jones in 2021.

Lauren advises on all aspects of family Law including divorce, separation, financial settlements, children and pre and post nuptial agreements.

In her spare time Lauren enjoys spending time with friends, reading and travelling.

 

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