Diary of a Divorce Lawyer: January 2021

7th January 2021 Family Law

The protracted Brexit negotiations between the EU and UK are reminiscent of so many long divorces. No one starts a divorce process expecting it to take years. Most clients approach me in the initial phase of separation, hoping to settle matters quickly and amicably. However, too often the weeks pass and an agreement cannot be reached, communication breaks down and resentment builds. Principles outweigh common sense and children regularly become collateral damage in a destructive family breakdown. Having been through a difficult divorce myself, I know first-hand how best intentions can give way to a litigious battle. The family court system is based on an adversarial process, each party advancing their own position and a Judge determining the outcome, often at considerable financial and emotional cost.

The court process is frustratingly slow and can take months or even years in complex cases. Only as a consequence of the pandemic have the courts been forced to adapt to new ways of working. The speed at which cases are heard varies from court to court, but delays are inevitable particularly this year due to the backlog of cases from 2020. However, there are other forms of resolution that separating couples can consider. Last year I was approached by David, a GP working in Twickenham. The pandemic had taken its toll on his health and his marriage of 20 years. He and his wife Sue were already in the process of divorce but were struggling to agree matrimonial finances. They were keen to settle on an amicable basis and avoid the uncertainties and prescribed approach of the court-based system.

I advised David about the various forms of alternative dispute resolution that he and Sue might wish to consider. Mediation is one of those alternatives. This is where the parties meet with an independent third party mediator. The mediator facilitates discussions between them to encourage a settlement or narrow issues. Mediators can be used to help financial disputes and child contact arrangements. It is usually sensible for each party to receive legal advice during the mediation process to ensure that they are well informed about their legal
position. Once a financial or contact arrangement is reached, that agreement should then be formalised, again with the assistance of legal advice. Not all cases are suitable for mediation, for example where there are issues of domestic violence or financial or emotional abuse, the mediation process is unlikely to be appropriate. Another option for alternative dispute resolution is arbitration. This is a form of formal dispute resolution, where the parties enter into an agreement under which a suitably qualified person (an arbitrator) is appointed to adjudicate the dispute and make an award.

The decision of an arbitrator is binding in the same way as an order of the court, providing certainty of outcome.

I also informed David that there are other alternative ways of resolving disputes, such as collaborative law or judicially assisted determination (sometimes called early neutral evaluation). These can be a useful way of avoiding a court hearing in an appropriate case. The benefit of ADR is that the timetable can be set by the parties and if necessary, the court process can run at the same time, so that if the case does not settle, time has not
been wasted and court proceedings can be reinstated if necessary. David left my office with the details for MID Mediation and counselling in

Hampton Hill and said that he would propose mediation to Sue as a first option. I was delighted to receive a call from him last week to say that he and Sue had reached a deal and would I advise him and draft a consent order for court approval. As the New Year brings with it the abundance of enquiries from those who have decided to take the first steps towards separation and divorce, I will be encouraging all those appropriate to consider ADR as an initial option. I know that if I were getting divorced in 2021, ADR would be my chosen path. If you have a family law query or need my advice, please contact me for an initial 30- minute free consultation.

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Tracey Rodford is a Partner located in Londonin our Family department

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