Good divorce in a bad economy

Good divorce week 2022 runs from 28 November to 2 December and has been promoted by Resolution, an organisation of family legal professionals committed to the proactive and constructive resolution family law matters. The focus for Good Divorce Week 2022 is to highlight and explore the ways in which families can resolve disputes without the reliance upon the courts. Through no fault of their own, and largely as a result of the COVID-19 pandemic, family courts across Scotland are stretched and despite the best efforts of court staff, families are often waiting for long periods to resolve finances and arrangements for children.

Against this background and in light of a cost-of-living crisis, how can separating and divorcing couples come to arrangements without recourse to the court? With uncertainty in the economy, obtaining mortgages and lending has become very difficult for many, leading to uncertainty in terms of finances and putting significant strain on families. Litigation should be the last resort for couples when all other avenues have been exhausted. To avoid time-consuming and costly court action, separating couples should consider how to pre-empt future issues and explore alternative methods of dispute resolution.

The relationship 'insurance policy'

Couples often cringe when the issue of pre-nuptial or cohabitation agreements is raised. However, these relationship 'insurance policies' are growing increasingly popular among those who seek some certainty on how assets and finances will be dealt with in the event of a separation. Cohabitation agreements and pre-nuptial agreements are flexible documents which can be as complex or straightforward as the relationship. If couples want certainty in terms of ring-fencing assets or protecting generational wealth, such agreements could save thousands in terms of legal fees and provide peace of mind for each party going forward. Often couples do not appreciate that allowing the courts to make decisions for them and their families provides limited certainty. Engaging with a family lawyer early can save time, money and emotional turmoil in the future.

Mediation

Mediation with a specialist family law mediator can be an excellent alternative to the courts. The mediator is a neutral third party who allows the couple to have direct and constructive conversations to assist in resolving issues in dispute. A mediator can assist with general communication issues, or narrow points of contention. The great thing about mediation is that the costs are transparent and up-front. Often the hidden costs of all the drafting and background work that goes into raising a court action can be an unwelcome shock for those who engage in litigation.

Collaboration

The collaborative process involves each party appointing their own collaboratively trained lawyer and all come together in a series of "round-table" discussions to deal with matters in an open forum. All the parties to the collaborative process, including the lawyers, sign an agreement that commits them to trying to resolve the issues without recourse to the courts. The lawyers instructed in the collaborative process are also prevented from representing their instructing client in any subsequent court action which may be necessary if the process breaks down. The beauty of the collaborative process is that it's not driven or constrained by the court timetable, so the process can be built around individual relationships and family priorities.

Arbitration

Arbitration is another form of alternative dispute resolution without recourse to the court. Parties refer their issue to one or more person (the arbitrator) and agree to be bound by their decision. Arbitration is often suitable where a decision requires to be made and the issues (or parties' relationship) are not best suited for collaboration or mediation.

Whatever the issue, recourse to the courts can be a costly, uncertain and time-consuming option. If you want a 'good' divorce, take the reins early and opt for an alternative course.