The divorce itself (i.e. the formal process of ending a marriage) is granted by the court, but there is very rarely any need for either party to actually attend court.
A court order is required to set out the financial settlement following a divorce otherwise there is no binding agreement. This can be done ‘on paper’ (i.e. by posting/emailing the order to the court for approval) without either party going to court.
There are several ways that parties can reach a financial agreement, instead of asking the court to make a decision. These are:
Via lawyers
This would involve parties swapping financial disclosure (bank statements, property valuations, pension statements, P60s etc.) and then taking advice on the fair parameters for settlement from the lawyer. The lawyer would then negotiate a settlement. This settlement can be negotiated via correspondence, by telephone or at round table meetings.
Round table meetings would involve both parties and their lawyers meeting face-to-face to negotiate a fair outcome.
An order would be drawn up once an agreement had been reached, and sent to the court for approval.
Mediation
This would involve both parties meeting with a qualified family mediator. The mediator would facilitate constructive discussions and help parties to negotiate an outcome.
Mediators cannot give legal advice, and so it is sensible for lawyers to be retained in the background to help parties present their financial disclosure, to review their ex’s disclosure and to advise on the fair parameters for settlement.
Again, an order would be drawn up by the lawyers to document the terms of the agreement which is then sent to the court.
Arbitration
Arbitration involves the appointment of a qualified arbitrator to effectively take on the role of a judge. The process is privately funded, and as such, is far quicker than the court process, and can take place at a time and venue that is agreed between the arbitrator and the parties.
The parties can also agree the issues to be decided upon by the arbitrator (which is not always the case via the court process).
The arbitrator’s ‘award’ (decision) is binding, and the parties agree at the outset that an order in the same terms will be sent to the court for approval.
DIY
Some parties prefer to negotiate a settlement directly with their ex-spouse, and instruct lawyers just to draw up the court order. This is very risky because it usually means that parties have not exchanged full evidence of their financial positions (and had their ex’s financial disclosure reviewed by a lawyer). This may mean that assets/incomes are missed, not dealt with in a fair way, or that issues that may give rise to future problems or unfairness are not identified and dealt with as part of the settlement.
All of the lawyers in the Family Team at Nockolds will only advise court proceedings as a last resort, as the court process is generally more lengthy, stressful and expensive than the other routes and does not allow parties control over the outcome. Unfortunately, court proceedings are necessary in some cases. We will help you to decide which route is best for you.
For more information on divorce and to find out how we can help you, please contact our Family Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.