Choosing the right process for you
The main choices for getting a divorce or separation are:
- DIY - reaching an agreement between yourselves
- Collaborative law
- Traditional negotiation and litigation
Each family is different. Take time to think through your options and do so with professional advice and guidance. Your individual circumstances will determine which of these options will be best for you. Choosing the right process in the beginning could save you time, money and anguish in the long term.
What factors may influence your choice?
- Your financial affairs are complicated and unclear
- You are up against a powerful personality and don’t want to deal with things on your own
- You want to feel the outcome is fair
- You want to keep costs down
- You don’t want a lengthy battle or you want an option that will bring certainty and closure
- You want the process to be as painless as possible
- You want to understand and influence what is happening
Think through the issues that are important to you and your family and talk them through with your lawyer.
DIY - reaching an agreement between yourselves
Negotiating your own agreement can be the cheapest and easiest way to a settlement. You can do this with or without professional support.
This option isn’t suitable for everyone but may work for couples who have mutually agreed to divorce, who remain on good terms and communicate with each other well, and who trust each other sufficiently to agree on the division of assets.
You may still want to take legal advice before choosing this option, to ensure that you understand your rights and the full implications of any agreements and decisions that you take.
Mediation is a way of resolving disputes and difficult issues between separating couples. Mediators can help with all the issues faced by separating couples, or you can choose to use mediation to resolve specific issues such as arrangements for your children.
Mediators are trained to help people resolve disputes. A mediator will meet with you and your partner together and will identify those issues you can’t agree on and help you to try and reach agreement.
Mediators are neutral and will not take sides. They are not advisors and will not give advice to either of you and will usually recommend that you obtain legal advice alongside the mediation process. However Resolution trained lawyer mediators will provide broadly based legal information to both of you within the mediation if this is appropriate.
Once you have proposals you both find acceptable the mediator will prepare a summary of them together with a summary of the financial information which will be sent to each of you to discuss with your lawyers. After you have both received legal advice and if you are both still happy with the proposals, the lawyers will convert the summary into a legally binding document and carry out any necessary implementation.
The collaborative family law process is a relatively new way of dealing with family disputes. Each person appoints their own lawyer but instead of conducting negotiations between you and your partner by letter or phone you and your respective lawyers all meet together to work things out face to face.
Each of you will have your lawyer by your side throughout the process and so you will have their support and legal advice as you go. Resolution trains lawyers in the collaborative approach. If you choose this option for your divorce, make sure your lawyer has received this training.
Collaborative lawyers sign an agreement with you that disqualifies them from representing you in court if the collaborative process breaks down. That means they are absolutely committed to helping you find the best solutions by agreement, rather than through conflict.
Sometimes only a couple of meetings are needed, on other occasions four or five. These meetings follow agendas set by you and your former partner.
Once an agreement is reached, your lawyers will put it into effect. The divorce can be finalised and a Consent Order sent to the court for approval.
Traditional negotiation / litigation
This is the most commonly used method. For some people it is the most suitable option from the beginning; for others it is the final option once other methods have been unsuccessful.
Usually you appoint a family lawyer who focuses on your interests and who negotiates with your partner’s solicitor. Outcomes often depend largely on what these lawyers expect would be the outcome of any eventual court process.
If an agreement cannot be reached, an application is sent to the court, although this sometimes happens right away if there are urgent issues to be resolved.
The court then issues a formal timetable of next steps. Negotiations can continue alongside the court process, which will steadily move to a conclusion unless the proceedings are withdrawn. Many courts face long delays and often it will be a long time before a case is heard.
If the court process reaches what is called the Final Hearing, the court has broad discretion to make a final decision based on what the Judge thinks fair. You are bound by that decision.
Often couples want to avoid court costs and the risk of an unfavourable decision so an agreement is reached before the Final Hearing. When this happens, a Consent Order is sent to the court for final approval by the Judge.