DIVORCE - COURT IS NOT THE ONLY OPTION
Since 1 April 2013, it is only possible to get legal aid for a financial application to the court in a divorce if you can show evidence of domestic violence. For people on low incomes, the only realistic option will probably be to represent themselves. Cases that involve such litigants in person are therefore expected to rise massively, which will slow down the court process. These cases already take between 4 and 12 months; in future, it will take even longer.
- Legal aid is not available in many divorce cases
- Court action is expensive but is not the only option in divorce
- Alternatives include family mediation and collaborative family law
Court is not the only option in divorce
This highlights the need to consider other options. In fact, most divorcing couples already do not use the court to resolve their disputes. The court’s involvement in their cases is usually limited to dissolving the marriage and approving an agreed financial order (usually a paper exercise). Many will instruct solicitors to engage in negotiations on their behalf.
Others will use mediation, collaborative law or family arbitration. These methods have traditionally been known as “Alternative Dispute Resolution”, although recently Resolution has renamed them as plain simple “Dispute Resolution”; it’s no longer considered to be an alternative to court, it’s increasingly the norm.
A family mediator is an independent third party who facilitates an agreement. The mediator does not provide legal advice; the couples should still instruct solicitors for this. Nor does the mediator make decisions for them; the responsibility for deciding matters remains with the couple. If the couple reach a consensus, the mediator prepares a Memorandum of Understanding which the couple will then review with their solicitors. If all is agreed, the solicitors will obtain a financial consent order from the court approving the deal.
Collaborative family law
Collaborative law involves the use of a trained collaborative lawyer. The parties and their solicitors will sign an agreement to work together in a non-confrontational way to reach a fair deal that meets their needs. The solicitors then obtain the financial consent order from the court.
Family arbitration is the newest option. The parties contract to accept the decision of their arbitrator who in effect acts as a privately paid independent judge. Arbitration is very new, and at the moment its main advantages seem to be a speedier outcome than a court and avoiding unwelcome publicity in a case.
All of the different processes have their pros and cons, and none of them are suitable in every case. The key to a successful outcome is to consult a solicitor about which option is best for you.
If you are considering a divorce you need to consult with an expert who can properly advise you on your options. Jon Armstrong is a solicitor specialising in family law and divorce and is based in Colchester, Essex.