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  1. Wealth
March 5, 2020

The case for taking your divorce to court

By Spear's

Contrary to popular belief, the confrontational route to divorce can actually wrap matters up more quickly than alternative methods, write Alexandra Hirst and Emily Brand

Recent government reforms were introduced to overhaul divorce law and reduce family conflict. But although going to court may make separating seem more confrontational, in many cases it could still be the quickest, cheapest and easiest way to get a divorce done.

In recent years family lawyers have gone to great lengths to minimalise conflict between divorcing couples. As a result, divorcing couples are pushed towards mediation or round-table meetings rather than issuing court proceedings. But does this trend mean that people are ignoring a forum which serves them better?

Many experienced family lawyers still believe that issuing proceedings is the quickest route to a fair outcome. If couples are involved in more informal means of resolving their disputes, there is greater scope to cancel appointments. Or if one party is slow to provide the information needed for a meeting it ends up being ineffective. This can lead to matters being dragged out.

With a court timetable in place, and the judge equipped with the powers necessary to ensure that there are consequences if one party decides not to ‘play ball’, everyone knows when they need to provide information and attend hearings. These dates cannot be changed unless both parties agree or the court believes there are good reasons to do so.

Once the court has compelled both parties to provide information required for the case to proceed, the parties may then be in a position to negotiate an outcome via their solicitors or indeed directly. They can then submit a consent order to the court, ending proceedings and wrapping matters up quickly.

Parties need to carefully consider their choice of legal team to ensure the costs are not prohibitive. In the long run, court proceedings can be cheaper than a voluntary process if it means the matter is resolved sooner.

Doing a deal over the kitchen table may work well in many cases but this overlooks those cases where parties (intentionally or not) end up agreeing to an outcome which they did not fully understand or which did not take into account assets or income s/he might be entitled to.

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Courtroom dramas have entrenched an image of the court as an aggressive world of back-stabbing lawyers who stoke up acrimony. This, in reality, is extremely rare. Attending a court hearing can be helpful for divorcing couples in the grips of a dispute. If one party is taking an unreasonable approach, this can be a good opportunity for them to be told formally that they need to change tack.

People often imagine they will be ripped to shreds by a barrister shouting at them in front of a full public gallery. Divorcing couples only have to speak in court if their case proceeds to a final hearing. Most family lawyers reach a negotiated outcome for clients at a much earlier stage and usually cases only proceed to a final hearing if they are particularly complex, of exceptionally high value or where one or both parties refuse to negotiate.

When couples engage in direct negotiations, one party may end up being more intimidated by their spouse then they would have been in a court scenario. Even individuals who are good self-advocates may crumble in the face of a spouse who is a stronger negotiator or who may have been abusive.

Ultimately, every couple is different and divorces are complex and unique. There are obvious benefits to alternative forms of dispute resolution (particularly in relation to disputes about children) but these should not be held above court proceedings. Parties should be provided with information about all options available to them so they can determine what the best process for them might be.

Photo: PublicDomainPictures/17907 @Pixabay

Alexandra Hirst is an associate and Emily Brand is a partner at Boodle Hatfield 

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