Divorce Day: As couples prepare to lawyer-up, we ask an expert how to separate well
As if the first Monday back after Christmas wasn’t depressing enough, 9 January is also known in family law circles as “Divorce Day”. The stresses of Christmas prove too much for some relationships and this is the time of year when couples lawyer up and begin working on their marriage exit strategies.
Still, there are bad divorces and there are worse divorces – we asked top divorce lawyer Francesca Skakel, who works for Birketts, for her top five tips to make the process as painless and straightforward as possible.
Lawyer up
It might sound like a cliché, but those wanting to start the process of separation should be seeking legal advice at the earliest possibility. This will give discussions with your partner the right focus and structure. Above all else, seeking legal advice will provide you with important reassurance that the final agreement you secure will be one that meets you and your family’s immediate and long-term needs.
It’s great that the Government has introduced an intuitive citizen’s portal to help people initiate the divorce process without a solicitor acting for them. However, more often than not, we have found that this has led to problems later, with many not realising that a final divorce order does not automatically end financial claims – even if you have reached an agreement with your partner on how to deal with finances between yourselves. In short, this means that you remain open to financial claims from your ex-spouse or civil partner in the future even if you have a final divorce order.
Additionally, a lot of people fail to consider the full spectrum of their families’ needs when deciding financial arrangements for themselves – a common example of this is retirement needs such as pension arrangements.
Seek advice from Resolution
To ensure the best focus and structure to these discussions, we would always suggest looking for advice from a member of Resolution. Resolution is a community of family justice professionals who work to resolve issues in a constructive and amicable way. You can find local family solicitors on the Resolution website.
Consider mediation
If you find conversations with your partner around the kitchen table have not been as successful as you might hope, you may wish to consider mediation. This is when an independent third party will help guide these discussions and conversations. However, a mediator cannot give legal advice, and so we would always advise that you instruct a lawyer in the background to these discussions to help structure your proposals in line with the court’s guidance for fairness. This is especially important for financial arrangements, as the court will not approve a consent order unless it meets their criteria for fairness.
If mediation has not produced the results you hope for or you do not think it is for you, you should discuss with your solicitor alternative dispute resolution methods that would be suitable to your particular circumstances.
Try to avoid court
If you cannot resolve matters by agreement, then you may need assistance from the court to decide the matter for you. However, the court process is long and costly and, in our experience, can lead to an escalation in tensions rather than a reduction.
It may be preferable to consider arbitration to help decide the matter on a private basis – which is quicker and sometimes even cheaper than full recourse to the public court system. An arbitrator will make a binding decision after hearing the full evidence of your case – think of an arbitrator like a private judge in that sense.
Separation vs divorce
Many people want to separate but not formally dissolve their marriage, whether for religious or personal reasons. In this case, you can discuss with your solicitor entering into a separation agreement, which is a type of post-nuptial agreement, to record the financial agreement. These agreements are not technically binding, but have a significant amount of legal weight if entered into properly with adequate safeguards (e.g. you both have legal advice, there has been sufficient financial disclosure, etc).