How to have an amicable divorce?
When making the decision to separate and formalising that separation through a divorce and division of finances, there are steps that may be taken to help make it an amicable process. The practical and legal arrangements for separation can be resolved amicably when you both have good intentions of working together to make decisions in the best interests of each other and any children that you share. There does not need to be expensive and highly charged litigation, which diminishes everybody’s finances and damages any co-parenting or friendly relationship. By being amicable and effectively working together, couples are more likely to reach an agreement quicker, and therefore, avoid incurring unnecessary legal costs or falling out completely. It is beneficial for children if both of their parents maintain an amicable relationship, as inevitably both parents will need to communicate in the future to maintain an effective co-parenting relationship.
Choosing to formalise your separation amicably and deciding how you will approach the practicalities of divorce reaps many benefits for everyone involved. For example, it can reduce legal fees if you choose to engage in out of court dispute resolution (NCDR) methods or come to an agreement between yourselves which then just needs to be written up by solicitors. This is important if there are not significant levels of assets in the pot for division as it means that values of assets are not reduced due to paying significant legal fees. Court involvement can make things more adversarial and comes at a significant cost due to solicitor involvement and barrister representation, especially if the case runs all the way to a Final Hearing. Additionally, if parties cannot resolve matters outside of the Court process or before Final Hearing, a judge, who has no personal relationship to either of you, will impose a legally binding decision on how your assets will be divided. Coming to an agreed resolution without the Court’s involvement is beneficial for everyone involved as it allows you to remain in control of the process and feel listened to. The divorce process can be a financial and emotional burden, but by maintaining an amicable relationship with one another, it can make the process less stressful. Whilst this is often the shared goal of individuals approaching divorce, it can be challenging, and disputes can still arise. There does not need to be Court involvement every time a dispute arises though, and one way in which you can reach an amicable resolution is by using Non-Court Dispute Resolution (NCDR) methods.
The most common NCDR process option adopted to resolve financial disputes on divorce is mediation. Mediation can also be used to resolve other forms of dispute, such as child arrangements or how to tell children about your divorce. Mediation is a voluntary and flexible process, and either of you can withdraw at any time, which ultimately means that you retain control throughout the process. The mediator is an impartial third party, who will assist you in coming to a realistic and fair outcome. The mediator cannot provide either of you with legal advice, however they can outline the legal foundations, to both of you equally, to assist you in reaching a workable outcome that will be in line with the brackets of possible outcomes should the matter be resolved by a Court. All discussions during mediation are on a without prejudice basis and any outcomes reached in mediation are not legally binding on either of you until you decide you want them to be. If you do decide on a workable outcome in mediation then this must be formally drafted, by a solicitor, into a financial consent order and lodged with the Court for approval before it becomes legally binding. All mediation sessions are completed in private, and solicitors are not necessary in the mediation process. Hybrid mediation can involve family professionals and experts to help deal with complex and difficult situations. In situations of high tension, ‘Shuttle Mediation’ allows the mediator to talk to each person in separate rooms.
Another way of resolving disputes during a divorce in an amicable way is through collaborative law. Under the collaborative process, each person appoints their own collaboratively trained lawyer and you and your respective lawyers all meet to resolve the dispute face to face, without having to go to court. It is a non-adversarial process, in which you attempt to settle the case in a way that addresses your competing needs and shared interests. Once you reach an agreement, it must be formalised into a financial consent order which is lodged with the Court for approval to become legally binding.
There are a range of other options for NCDR and we have summarised all of these here.
There can be many reasons why it is not possible for couples to amicably resolve matters on separation and where NCDR methods are not a viable option. Sometimes the dispute is incapable of being negotiated due to an imbalance of power between a couple, or extreme conflict in which case mediation or other NCDR options may not be safe or effective. If you feel that NCDR would not be suitable for you, we can also assist to guide you through court processes as cost effectively and constructively as possible, whilst ensuring that you and your family feel safe and heard.
If you have decided that your marriage has irretrievably broken down and you are keen for the process of divorce to be amicable, our specialist team can help you. Please get in touch to arrange a consultation.
Yasmin Jeffrey is a Paralegal in our Horsham team.