Divorce and financial dispute resolution

Do we have to go to court to resolve our financial issues upon divorce?

If you and your spouse are able to reach an agreement about the financial issues arising from the breakdown of your marriage (either in discussions between the two of you, or perhaps also with the assistance of lawyers or other professionals), then there is largely no need to involve the courts.  It is still important, however, to record any agreement that you reach in a court order at the end of the process in order to ensure that it is binding, and you should ask lawyers to do this for you. An agreement that a couple asks a court to approve is called a 'consent order'.

With divorce, there are many financial dispute resolution avenues to resolve matters which do not involve going to court (called Non Court Dispute Resolution (NCDR)).  All are voluntary so both spouses need to agree to use them, but a couple of advantages common to all of them is confidentiality and the fact that you are in control of the timetable.  The non-court methods include:

• Mediation – this is conducted by a professionally-trained mediator (who may or may not also be a lawyer) whose role is to help the spouses reach their own agreement.  A mediator is independent so will not advise or take the side of either spouse.  Each party can have their own lawyer advising them in the background, if they wish.  An agreement reached in mediation is not legally binding until each spouse has taken legal advice on it (or declined to do so) and confirmed they wish to be bound by it and/or the agreement has been made into a court order.  We have a number of experienced mediators in our team: Suzanne Todd, Diana Parker, Claire Blakemore, Adele Pledger, Natalie O'Shea, Jemma Thomas and Jennifer Dickson.
• The collaborative process – each spouse appoints their own lawyer who is trained in the collaborative process.  The spouses and their lawyers will then all meet together (or exchange emails with everyone in copy) to reach an agreement.  If an agreement is reached, the lawyers will convert it into a court order to make it binding.  If an agreement cannot be reached, and an application is made to court then the spouses must find new lawyers to represent them in the litigation.  In our team, Suzanne Todd, Michael Gouriet, Claire Blakemore and Adele Pledger are all collaboratively trained.
• Negotiations through solicitors and/or a private Financial Dispute Resolution hearing ('FDR').  Negotiations can take place via solicitors' letters, telephone calls, or meetings.  If an impasse is reached, it is possible to hire a retired judge or barrister to act as a private FDR judge, who hears each person's proposals for settlement and gives a non-binding indication of what he/she considers a court might conclude. This can often help break an impasse and facilitate an agreement being reached.
• Arbitration – the spouses agree on an arbitrator (who is often a solicitor, barrister or a retired judge) to make a decision after hearing from both of you or your lawyers.  The decision is binding (though it does need to be converted into a court order).  In our team, Diana Parker and Michael Gouriet are able to act as arbitrators.
• Uncouple – Uncouple is a service that Withers has designed and offers to its clients.  It allows a separating couple to both appoint Withers together to reach an agreement, and it allows the couple to move seamlessly between the above options.  The couple will appoint one Withers lawyer (a Facilitator) to guide and direct them through the process, and that lawyer can bring in other (impartial) Withers colleagues at any stage of the process to act as evaluators (to help narrow the issues between you by giving an indication about how they would decide the case if they were a judge) or arbitrators (to actually make a decision which binds you).  The couple can decide, in collaboration with their Facilitator, what process to adopt in order to reach a solution.  
• Early Neutral Evaluation (ENE) – the couple appoint a neutral 'evaluator' who considers the couple's positions and the evidence and explains what they think a court would decide based on this information.  In a financial context, this is usually known as a 'Private Financial Dispute Resolution appointment' (a private FDR or pFDR).