By settling outside the court arena, both parties priorities can be properly considered and taken into account
The news that Charles Saatchi is representing himself against the indomitable Baroness Shackleton has created much interest in the media. Why would someone allegedly worth £130 million not spend money on legal representation to avoid being taken to the cleaners?
If we are to believe media reports the answer is simple. Charles and Nigella have each agreed that they will retain their own assets and come to an amicable agreement. We do not know if they had a prenuptial agreement. It was a second marriage for her and a third marriage for him with children from previous marriages, so they may have been advised to consider protecting their respective pre-marital assets with a prenuptial agreement.
Increasingly couples are choosing to settle their cases out of court be it through collaboration, mediation or round the kitchen table. There is no right or wrong answer in a divorce case (if there was, one would just put the figures into a website and come up with the answer).
An individual judge hearing a case has discretion within the framework of the statutory regime. ‘Fairness’ is subjective. What does one party need to re-house? To what degree is it appropriate to ring-fence inheritance that one party has brought into the marriage?
If a case goes to court then both may end up with an order that they are unhappy with. By settling outside the court arena, both parties’ priorities can be properly considered and taken into account. There are three main ways a couple can reach a settlement outside of court:
1. Kitchen table – increasingly couples sit down together and come to a solution that feels fair to both. It is not unusual for one or both to take legal advice and for a solicitor to draw up a final order. This route tends to be the cheapest. But the disadvantage of not having advice before the discussions is that sometimes a solicitor subsequently raises something that his or her client would like to have included which the client feels uncomfortable raising post-agreement.
2. Mediation – a couple attend mediation together. Although the mediator may also be a qualified lawyer he or she will not give advice. They will be provided with information and this can include the mediator’s experience of what a court might do. The advantage of mediation is that it encourages the couple to think about things which they may subsequently be advised by a solicitor to deal with.
3. Collaboration – both parties appoint a lawyer but instead of the traditional method of correspondence going backwards and forwards, all four sit round the table and advice is given by the solicitors in those meetings so that all can hear what is being said and why. Read more on collaborative law from Spear’s
Assuming agreement is reached using any of the above formats the procedure is straightforward. Any agreement reached is not binding unless or until it is approved by the court which cannot happen until there is a Decree Nisi within the divorce proceedings.
While clients sometimes draft the Divorce Petition themselves a solicitor is normally needed to draft the Consent Order. This is the document which sets out the financial agreement. It is important if there is a clean break, that all the claims the couple have against each other are dismissed. Often one person instructs a solicitor to draft the Consent Order and the other does not have to appoint a solicitor but checks the document themselves.
In Charles and Nigella’s case, Nigella has apparently decided not to pursue a claim against Charles for a lump sum despite his wealth being significantly more then hers. Presumably she values being a financially independent woman. Fiona Shackleton may well have advised her she could make a claim for a lump sum but it is perhaps not surprising that she has chosen not to.
Whether Charles has spoken to a lawyer informally we do not know but if she is not making a claim against him he has no need to. He will just need to check that the order prepared by Baroness Shackleton dismisses all the claims they have against each other, which is perfectly straightforward.
So to conclude, it is not surprising that Charles has decided not to reduce his millions by a few hundred pounds and appoint solicitors on his behalf. Where people spend their money is trying to get to an agreement, and if you are able to do this yourself, divorce need not be an expensive or time consuming process.
Kirstie Law is a partner at Thomson Snell & Passmore
Read more on divorce from Spear’s
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