See you in court? If you're getting divorced it's increasingly unlikely

Divorce: an inevitably difficult and gruelling battle with lawyers and former spouses on opposing teams power walking around the corridors of mighty office buildings and court rooms. Right?  No…   Wrong.  No decent lawyer actually wants to make a drama out of their client's crisis.  

Divorce is already upsetting enough and what the best family lawyers in fact hope to achieve is a fair outcome: one that allows each person to move forwards with financial independence and, ideally, with a workable relationship with their former spouse so that, if they have children, they can still parent together and they can both attend graduations, weddings, and family celebrations of the future without it being unbearably awkward.

Since the beginning of my career, more than 20 years ago, I have been focussed on helping separating families find solutions. Over that time various different ways of working with families have evolved, and there is now a wealth of alternatives to court proceedings for those separating to consider, including:

• Arbitration
• Mediation
• Collaborative lawyers
• Uncouple
• Negotiation

Each option is explained on our FAQ page.

In addition to a surge in the number of methods for resolution, there is an increasing emphasis from the courts for those separating to explore the options carefully before making any applications to court. In the last few months there have been two significant legal developments:

• Amendments to the rules and protocols governing court applications so that before making an application you must let the court know what steps you have taken to engage with other methods of resolution.  Failure to do so could result in an application being adjourned – so the court will not deal with it until you have attempted an alternative – or a costs order being made so that you must pay towards the other person's costs;
• Developments in case law indicating that the court will take a robust approach to the changes in rules and will expect lawyers and clients to actively seek alternative methods of resolution before coming to court.

The message from the courts is clear – it is often possible to find a way through without recourse to the courts if you work hard enough at it.

Whichever route families choose to explore there are some commonalities. For disputes regarding children, it is essential to remain focussed on what is in their best interests and to think practicality about what will work for their particular family and, where appropriate, seek the views of the children. When it comes to financial arrangements there are 3 main questions to answer:

• What are the family's financial resources? It's essential to have a good understanding of what is available.
• What does each person need in terms of housing, income and pension provision?
• What is a fair way to divide what is available?

The courts are seeking to address these commonalities in encouraging people to find solutions outside of court.

For children, the new Pathfinder pilot (currently only available in certain regions in England & Wales but soon to expand) uses a more investigative approach to ascertain the views of the child sooner and also to engage with appropriate agencies and professionals (such as domestic abuse services and mediators) to ensure families receive the support they need as soon as possible. The idea is that where families are suitably supported they are more likely to find their own solutions without recourse to the court, but that where court is the right place they need to be able to access support there too.

For financial arrangements, there is a new protocol – which applies to all financial applications on divorce – and provides that separating couples must engage appropriately in alternatives to court proceedings. Specifically, they should provide each other with all relevant financial information and seek to both identify and narrow the issues in dispute.

There are times when the court provides an invaluable role – for arrangements in relation to children, where there are safeguarding concerns (where there has been domestic abuse or for children or parents with drug/alcohol/mental health challenges) the court is in a position to carry out risk assessments and make findings of fact. When it comes to the financial arrangements, if one person is not providing the information required to move forward with discussions, or there is an issue of fact on which they cannot agree, then (unless both agree to use arbitration – more details here) court is the only option.

Knowing all the options available to you and making informed decisions is key. And even if the court process is the only way forward to begin with, sometimes circumstances change so that a previously unsuitable option becomes the most constructive way forward. Finding a path through a divorce requires the parties and their lawyers to constantly check the map for the best route.