Achieving a constructive resolution when dealing with a divorce or separation

Disentangling a couple’s finances and funding two homes out of one is one of the most difficult aspects of separation, and beginning the process is often a daunting prospect.

There is an ever increasing range of services offering assistance in resolving financial arrangements upon divorce ranging from solicitor led processes to unregulated ‘divorce apps’ with many other options in between.

Constructive resolution is using an appropriate process or processes to resolve matters with minimal cost, stress and conflict but with so many routes available it is unsurprising that couples are often overwhelmed by choice.

Choosing how to separate your finances

The first question to ask yourself is how do you want to sort things out? Are you comfortable having a direct conversation with your ex?

If you’re not comfortable with doing that then would having an independent person (such as a qualified mediator) to facilitate your discussion help, or would you prefer to instruct a solicitor to deal with all correspondence on your behalf?

Do you think that you might ultimately need a third party to make a decision for you (such as an arbitrator or a judge)?

As well as settling on your preferred communication style, it is also important to think about how familiar you are with your family assets.

Someone who has not been involved with running the family finances may need more professional support than someone who has detailed knowledge of your family's financial position. Again, there is a spectrum of support available depending on your individual needs.

Does instructing a solicitor make a fight inevitable?

Not at all. It is a common misconception that instructing a solicitor to deal with correspondence is ‘upping the ante’, but a family solicitor’s job is to help their clients resolve matters and act in their best interests.  A highly contested process just for the sake of it is unlikely to be in anyone’s best interest.

At Russell-Cooke all of our family solicitors are members of Resolution and are signed up to a code of practice requiring us to work constructively to reduce and manage conflict. We seek family focused solutions and work with clients in a range of ways to provide the support they want and need.

Some clients choose to consult a solicitor at the outset to understand the legal position and then use that knowledge to aid their direct discussions with their ex, only returning for help with formalising the final agreement that they have reached. Others will check in for ad hoc advice throughout negotiations or a mediation process.

For those who prefer to have a solicitor handle the correspondence and negotiations, we are used to working constructively and amicably with our colleagues at other firms. If we cannot resolve matters in correspondence then we will consider alternative dispute resolution methods such as roundtable meetings, Early Neutral Evaluations, Private FDRs and arbitration.

A court application is also a useful tool as it puts in place a timetable for disclosure and gives a backstop process for resolution. A court application can be used very effectively along with alternative dispute resolution methods. For example, you may issue a court application to provide a framework for the financial disclosure process but use the accelerated procedure to avoid having any administrative court hearings and then arrange a roundtable meeting or private FDR.

Used in a constructive way a court application does not have to mean high costs or conflict and it is worth considering all resolution methods as a complementary package rather than totally separate processes.

A word of caution

Even seemingly straightforward financial settlements can have hidden legal or tax consequences, so it is always advisable to seek legal advice before finalising an agreement. It may be that specialist advice is needed or that a settlement needs to be structured in a specific way in order to avoid any issues with implementation.

Once you have reached an agreement you will need to obtain a Consent Order from the court so that the agreement becomes legally binding. The agreement will be reviewed by a judge and they will only approve it if they consider that it is fair in the circumstances. Again, taking legal advice before submitting a draft order should help to minimise the chances of it being rejected.

How we can help

Our specialist family solicitors can advise you across all aspects of a divorce or separation. A large number of the team are accredited mediators and all of our family solicitors are members of Resolution and are committed to the collaborative process. Alternatively, please complete our online enquiry form.