With the introduction of no-fault divorce in April 2022, the courts are seeking to encourage parties to move away from the blame game and instead work together to address the important issues such as arrangements for children and division of family finance. Below is an overview of how separation disputes regarding children and finances may be resolved.
Discussing matters with your partner directly regarding separation disputes
This should be used at least as a starting point so that you can identify and narrow the issues that are at dispute. You can seek help from friends and family if they can maintain impartiality but discussions should take place away from children.
- You are not working to anybody else’s timetable. You can arrange discussions for times that are suitable for you both.
- Nobody else is making the decisions for you. You both have complete control of the process. You can structure arrangements as flexibly as you wish.
- It won’t cost you lots of money to sit down and talk.
- This will not be suitable where there has been or there is risk of any form of domestic abuse. Your safety is a priority.
- Emotions could get in the way of productive discussion. A person may agree to something that is not in their best interest or that of the child or alternatively may hold an unrealistic stance and not be willing to budge. In this case it would be wise to consider some of the other options discussed below.
- Where assets are complicated or there are substantial pensions, use of specialists will likely still be needed.
- Verbal discussions will not be legally binding. You may still need to contact a solicitor to draft a consent order to be approved by the court. This will however still be much more cost-effective then court proceedings.
Mediation to discuss separation disputes
If you like the idea of talking it out but need somebody impartial to be there, then mediation may be the route forward. For details of mediators in your area, click here: Home – Family Mediation Council
- You don’t have to be in the same room. You can be in separate rooms or mediation can even take place online.
- The mediator can also meet the children to get their views.
- The discussions are without prejudice, meaning if you did end up going to court, these discussions cannot be referred to.
- You may be eligible for legal aid towards the costs of mediation fee. Click here to check if you are eligible: Check if you can get legal aid – GOV.UK (www.gov.uk)
- You may eligible for the Family Mediation Voucher which pays £500 towards the mediation costs.
- The cons are very much as for direct discussions with the extra element that mediation costs on average about £140 per person per hour, however this is still cheaper than legal fees.
If talking between yourselves or mediation isn’t right for you, then the next step would be to ask a solicitor to negotiate with your ex-partner (or their solicitor if they have one) on your behalf.
- Your ex-partner is more likely to take things seriously when contacted by a solicitor.
- A solicitor will look at matters objectively unhampered by high running emotions.
- You will be able to benefit from the solicitor’s knowledge and expertise and they will be able to advise you as to whether the agreements and arrangements are fair.
- Where assets are complicated, solicitors can assist you in instructing other professionals on your behalf such as Independent Financial Advisors, Pension Actuaries and Accountants.
- Solicitors charge an hourly rate, so the process could get costly. You may prefer to ask about fixed fee options.
These consist of 4 ways meeting with both parties and their solicitors. Parties’ sign an agreement that they will do their best to work together achieve a resolution.
The pros and cons are very similar to solicitor negotiation but with the extra downside that if you are unable to reach an agreement, then your solicitor can no longer act for you so you will have to instruct someone else should you then need to go to court.
Using arbitration for separation disputes
Arbitrators make decisions for you that are binding on both parties. For details of arbitrators, click here: Search for an Arbitrator | IFLA
- They can be instructed to make a decision on all matters or just the matters you haven’t been able to agree on.
- It is possible to get a decision on submissions alone, without having to make personal attendance.
- The process is quicker than court proceeding and is confidential.
- This is an extra cost in addition to legal fees.
- Somebody else is imposing a decision on you.
- The arbitrator’s decision will still need to be drafted into a court order.
Going to court
This should be a last resort. You will be expected to have attended a Mediation, Information and Assessment Meeting (MIAM) before issuing court proceedings (unless an exemption applies e.g. domestic abuse).
- There is a structured approach with deadlines and hearing dates.
- The decision is binding with penalties for breach.
- You may be able to get help with court fee. Click here for more information: Get help paying court and tribunal fees – GOV.UK (www.gov.uk)
- You work to the courts timetable. There could be several hearings with lots of documents to be completed in between. It could take months if not over a year to reach a resolution.
- Somebody else is making the decisions for you.
- In addition to court fees, you could also have solicitors and barristers fee.
The options for dispute resolution do not have to be used in isolation and can also be used together to reach an agreement about financial matters and/or children. For more information about the best options for you, please contact Madia here.