Divorce or Separation – what’s the best way forward?

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It is a sad fact that many marriages and civil partnerships end in separation leading, inevitably to divorce and dissolution. However, reaching a resolution is not entirely straight forward in most cases. The interests and desires of each of the parties usually diverge relatively soon after the separation and those interests can then come into conflict.

Eventually, the situation will be resolved – and not always to either party’s satisfaction with compromise required, in most instances, by both parties.

Most couples, when they separate, are unaware of the breadth of options available to them as they move forward into their new lives apart. Many of them believe that their only options are either a negotiated settlement or court. However, there are a wider range of options available to couples who have separated and wish reach a resolution of the differences between them.

The available options are:

  • Solicitor negotiation
  • Collaborative Practice
  • Mediation
  • Arbitration
  • Litigation

We will now consider each of the options currently available and explain what each entails.

Solicitor negotiation

Solicitor negotiation, until recently, was the way most separation situations were dealt with. Unless there are pressing reasons for litigation, such as domestic violence or where there are concerns about the welfare or security of the children, solicitor negotiation is a sensible way to try to manage the expectations of and arrangements between the parties.

Solicitor negotiation involves each party providing information to their own solicitor and expressing their desired outcome. The Solicitors then exchange letters with a view to reaching a resolution. The solicitors explain each exchange of letters to their client. The aim is to reach an agreement and to enshrine this in a Minute of Agreement that is binding on the parties.

Some people accuse solicitors of “moving the goalposts” when they represent a client when there is a separation. That, however, is wide of the mark. One of the duties of a solicitor is to explain the rights to which their client is entitled and to then ask for their instructions. That is why, on occasions, a client will change their position after meeting their solicitor. They now know what rights to which they are entitled and their decisions are then based on those rights. At that point they will instruct their solicitor to put their position forward – and this might well be different from their position prior to being fully aware of their rights.

There are now three alternative routes to reaching agreement between the parties and those routes may lead to a quicker, cheaper and, perhaps, a more equitable agreement. We will look at these in turn.

Collaborative Practice

When the parties decide to engage with Collaborative Practice, they will each instruct their own solicitor. In addition, they will sign up to a collaboration agreement. This commits them to settle issues between them without resorting to court.

The parties and their solicitors are present at meetings where they will set out and discuss the issues between them. Solutions to those issues are explored in an effort to reach agreement. When further information is necessary from third parties, those third parties can be invited to a meeting to explain the position. This might be when there is a financial question and expert financial advice is necessary.

Throughout the process, each of the parties will be advised by their own solicitor outwith the meetings. What takes place in the collaborative process is confidential except in respect of the parties’ financial position which can be used outwith the collaboration process.

When the parties reach an agreement, this is then enshrined in a Minute of Agreement between the parties which is binding on them. If agreement cannot be reached and if one of the parties decides to go to court, the solicitors involved in the collaborative practice cannot represent the parties in the ensuing litigation.

Mediation

As with collaborative practice, Mediation also involves a third party as a mediator. Each party will have their own solicitor and they agree to appoint a Family Mediator who will mediate the arrangements between them.

The Mediator does not represent either of the parties but looks to resolve issues between them and to seek agreement as to what should be done.

This usually involves a series of meetings with the parties, either individually or jointly resulting in the Mediator providing a summary of the mediation. When the mediation is successful, a Minute of Agreement can then be prepared setting out the terms of the separation. The Minute of Agreement is binding on both parties.

Again, the mediation is confidential except in relation to financial information which may be used outwith the mediation.

Both Collaborative Practice and Mediation look to put the parties at the heart of the process to seek the best outcome for everyone involved. They can also deliver solutions that might not otherwise be available to the courts if the parties were to resort to litigation.

Arbitration

Arbitration is a more recent addition to the options available to separating couples. Taking an arbitration option may help avoid litigation.

There are differences between Collaborative Practice and Mediation when compared to Arbitration. In an Arbitration, the parties agree to be bound by the decision of the Arbiter.

In addition, Arbitration is unlikely to deal with all the issues. The arbiter is more likely to deal with a single issue. Such an issue might be the actual date of separation – usually referred to as the relevant date – which is important from a legal perspective, especially when dealing with the valuation of assets. For examples of the types of issues suitable for arbitration, please visit the Family Law Arbitration Group Scotland website by clicking here.

Other issues can be resolved through the other options we have outlined earlier.

Litigation

When all else fails or if there is an urgent need to protect a party or the children of the relationship, litigation may be the only option. This means getting involved in court and arguing your case. Litigation tends to be lengthy and expensive. In addition, litigation may well deliver a resolution that neither party is happy with.

If you have separated from your partner and to understand the options available to you, please contact us. We will be happy to explain your options in detail and seek the solution that best meets your needs.

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