13th Sep 2018

Does divorce have to mean a court battle?

A recent Supreme Court case – Owens v Owens – saw the court refuse to allow a divorce to proceed and has brought the family lawyers’ organisation Resolution considerable media coverage with calls for the introduction of a ‘no-fault divorce’. This cause is one of many Resolution is currently running – indeed it has issued a manifesto for reforms which cover various aspects of the separation process.

One of the key points is the introduction of measures to help keep people out of court – an often bitter experience which can be both emotionally and financially costly.

The government’s introduction of Mediation Information and Assessment Meetings (“MIAMS”) is a welcome step to ease the potential animosity around cases. It means people ought to consider mediation before applying to court, though the reality is that public funded mediation numbers have fallen and there are increasing numbers of people representing themselves.

Resolution recommends that MIAMS should not just focus on mediation but look at all the solutions that are available to separating couples – different methods suit different people. They recommend that MIAMS should take place much earlier in the separation process, so all appropriate information is available to a couple at the start, not when they have already begun to take a particular path. This can help to make informed, future focused decisions. 

Though there will always be times when someone must fight for their rights, making court necessary, for most separating couples there are alternatives. These include collaborative law, where the parties sign a formal agreement not to litigate and commit to finding a solution face-to-face round a table is one.

Traditional solicitor negotiation is another and arbitration is now available in family cases. If appropriate, these options enable the parties to keep more control over the process and are considerably cheaper and quicker than a court battle.

Separation does not have to mean litigation and options that can lead to better and less costly outcomes. An experienced solicitor will always have this in mind when they first meet a client. They should assess what might be the best option in the circumstances and setting out the choices to the person sat in front of them. Understanding those options is crucial and getting legal advice at the outset – before any decisions are made – is best way to move forward.

Stephen Root is a leading Family Lawyer with over 30 years’ experience.

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