If divorce was to be compared to an Olympic event, which one would it be? A long, gruelling marathon? Maybe a series of different challenges like the heptathlon? Perhaps navigating the twists, turns and choppy waters of the kayak slalom? Or some might say it's more akin to the blood, sweat and tears of a heavyweight boxing bout.
It is easy to think of divorce, and family law in general, as a contest. The common vernacular is awash with sporting analogies. Divorce is a fight, with couples going "head to head". Child related disputes are "custody battles", throwing up images of a tug of war with a child being pulled in different directions. Which party will defeat the other? Whose team are you on? That may be a natural consequence of the adversarial nature of our court process where parties are pitted against each other, but in reality very few family law cases are courtroom spectacles. It rarely feels like there is a winner and there are certainly no medals handed out. Yes, at the end of the day you will be divorced, and you may agree or be awarded a financial settlement. That is and can be viewed as a success, but how you arrive at that point could be just as important as the outcome. In family law, sometimes it's not only the winning but how you take part that counts.
Of course, litigation is a significant part of the work family lawyers do. Court action is sometimes necessary, particularly where there is a need to protect one party from the other, to safeguard the wellbeing of a child, to provide urgent financial support or to prevent one party dissipating matrimonial assets to the prejudice of the other. In those cases, there may be a race to the court, the gloves may be off (see how easily the sporting metaphors just sneak in there!) and clients have to prepare themselves to come face to face with their spouse in court. The uncertainty, financial pressure and emotional turmoil of litigation should not be underestimated. Our job as family lawyers is undoubtedly to get the best result for our clients, but we also require to provide support and advice throughout the process in a way that enables clients to move forward more positively once the dust settles. That is particularly important where there are children involved and there will be ongoing co-parenting responsibilities.
In most cases court is a last resort. Many divorcing couples never set foot in a courtroom. Often divorce settlements are negotiated with the help of family lawyers and formalised in a legally binding agreement. Couples can then proceed with divorce on an undefended basis, without the need for court hearings. Where there are no children under sixteen and no financial matters to resolves, couples can apply for a simplified divorce once they have been separated for two years (or one year if both parties consent).
As it is now commonplace for both spouses to work and share child caring responsibilities, many separating couples are conscious of the need to maintain a co-operative, well-functioning (albeit different) relationship with their former spouse following divorce. Some of our clients opt for alternative dispute resolution, such as mediation or collaborative law, to help them avoid confrontation and to arrive at an outcome which can be specifically tailored to the needs of their family.
Mediation involves spouses getting together with an independent, trained mediator who will help them to work out arrangements for children and/or finances following a separation. Unlike court, mediation is a voluntary process and arrangements cannot be forced upon participants against their wishes. Once an agreement is reached in mediation, parties can take steps with their lawyers to make the agreement legally binding and proceed with divorce. Mediation is often much more cost effective than litigation and enables participants to remain in control of the decisions that are made.
In contrast to litigation, collaborative law is a non-confrontational process where specially trained lawyers support clients to resolve matters through a series of carefully planned, round the table meetings, which both spouses actively participate in. There is no behind the scenes negotiation and all parties must agree on what is to be discussed and the next steps to be taken. Other professionals such as financial advisors and family counsellors can be involved to help resolve specific issues. Once agreement is reached parties enter into a legally binding agreement. It is a condition of the process that participants cannot instruct their lawyer to raise court proceedings if the discussions break down. As a result, everyone participating in the process has a vested interest in reaching a successful outcome.
Arguably, sport and family law have much in common. Many factors contribute to an athlete's success - from preparation and careful planning in the background, to choosing which equipment to use and which approach to take, deciding who will form part of the coaching and support team, and identifying when to make that decisive move. In many ways, divorce is very similar. How your case is conducted, whether litigated or otherwise, can have significant impact on the outcome and your future plans, so making the right decision about who to have in your corner is key. If you would like to find out more about our team and the work we do, please do get in touch.