Barrett & Co deal with all aspects of family matters following separation or divorce. It may sometimes appear that the matter will be straight forward, but it could become more complicated. It is always important to consider all issues and these may relate to the divorce suit or civil partnership dissolution itself, the financial issues that may arise out of separation, divorce or dissolution as well as disputes involving any relevant children. We advise on Deeds of Separation for couples who are not married, who may not wish to pursue divorce or a dissolution their civil partnership.
When initially considering matters it may help to spend a few moments on the following:-
What are your objectives and what is the likely outcome for you if you do not achieve this. Objectives can be about ethical and aspirational hopes as much as simply having mechanisms to help you cope with what may be a presently terrible situation and circumstance. Are there outcomes and objectives that you would hope to achieve in respect of your children if relevant, or that you will realistically be able to do in the future for yourself (post separation, post divorce or post civil partnership) that you cannot do now and how best do you think this can occur bearing in mind other factors that will need to be considered further?
If possible you may wish to consider how, in say five or ten years time, you would have liked the process to have been and to set out your objectives with this in mind as well.
Considerations may include some of the following:-
- Do you know what you want and need?
- Do you need help through this process, for example, Counselling, family therapy and other professional supporters/advisors?
- How much trust is there between you both?
- On what areas do you agree or disagree?
- Are you both clear, honest and transparent with each other?
- Has each of you fully considered the various options/choices (see below) open to you properly and have you been able to discuss these options together?
- Have you been realistic and are you being realistic about what you can achieve?
- Is there a dialogue between you and can this be realistically maintained? The more dialogue you can have or build on, the more options and solutions may be available to reach a settlement because you are also building trust by being honest and open.
You have more options at the start of the process and it is important to consider these further.
- The kitchen table
You might be able to sit down together and try and sort things out between you. This can be an appealing option because matters may well be within your control and knowledge. The risks are that one or both of you may feel pressurised and anxious and may not feel that you have within your knowledge all the best options and outcomes for your own circumstances. Furthermore you cannot have input of advice and experience at such meetings which could well be crucial at this early stage when perhaps parties are not always willing to listen or to “hear” the other.
You can follow the traditional litigation process which can take one of two usual forms – that being the exchange of information (this can be financial information or proposals for contact) through the use of Solicitors to try an agree a settlement voluntarily; or, by way of a Court application to the local Court.
Parties should always bear in mind that this process can still be time consuming and expensive and deals are often reached sometimes because it is too painful and irrational to carry on with the process any longer (i.e. that it is no longer a positive decision to adopt an option but an imperative one to close down the process on any terms available because, for example, of the amount of costs that have been incurred as part of that process).
It is also relevant that quite often when one “negotiates” in this context, the Court process itself starts to form the settlement in that Court based solutions can be quite crude and often fail to make the best of the situation or indeed identify the real concerns that either party has or indeed, the ideas that either of you may well have which could have avoided the use of this traditional route, may be overlooked.
When a Court application has been made, parties may well feel that it is helpful to have some form of timetable so that issues cannot drift and this may well benefit parties in focusing on trying to narrow down and indeed resolve some issues in dispute.
- One of you has legal representation whilst the other does not
One Solicitor cannot act for both of you. However, it does not stop you considering this process if you wanted where one of you acted in person (often known as a litigant-in-person) and the other party had a Solicitor.
This may well work where there are few or little issues in dispute and there is clear co-operation between you.
However, if you do not feel that you know exactly what you want you might find that the process does not allow that sense that you have been fair to the other or that you have been treated fairly by them if you are the litigant in person. It would also mean that both of you would need to know more about the Court approach and the likely outcomes. If you do not know what these may be then you may have to consider if this option would work for you both. Additionally, if you have one Solicitor, he or she cannot represent you both so the indications about Court approaches risk being partisan and may in turn be harder to trust.
Mediation is work that is done at a face to face meeting round a table. One mediator will sit with you both assisting you to firstly identify the issues between you, to then identify options to solve those issues and thirdly to think through how these would work in practice. At mediation, there can be no legal advice and the point of mediation is to enable the parties to have a forum in which to meet although the Mediator cannot necessarily act as an Arbiter. Their role is to facilitate discussions in the hope that you can reach an agreement directly but you would probably each have solicitors outside the process who would also assist you in finalising and implementing the terms of any proposals discussed at such meetings. Mediation can be an effective process where there are limited issues in dispute.
Mediation can also be used in conjunction with and to support the Collaborative process as noted below.
The main norms of collaborative law include the following:
- you each have your own solicitor but it must be one who is trained in the process.
- from the outset you will sign a Participation Agreement. This contains various ethical commitments dealing with how you are going to negotiate as part of that process.
- you are prevented from starting legal proceedings until you give notice. What this means is that you each are reassured that the other is not about to rush off to Court. The increasing confidence often helps everyone to stay with the process working out solutions for a longer period. That is why it would be important to spend more time discussing whether or not this is appropriate for you both and if this process could work for you.
- whilst you will have all the discussions, advice and papers that you feel you may need from your solicitor, in the same way as you do with litigated proceedings, all of the progress will tend to be done in face to face meetings (solicitors and clients at the table together).
- the discussions happen in front of you and the solutions are yours. This increases the sense of control that you each have over what is unfolding. The solicitors’ role includes sharing with you their experience to help you understand what the Court norms might be, but also to structure the process so as to enable you to see the whole thing through together.
- at the end of the day, the conclusions that you reach would usually be made into Court Orders in the same way as if you had spent the money advancing your claims in the Court process.
- the collaborative process tends to operate at the centre of a network involving other professionals as required which might be:
- to secure financial advice or obtain accountancy support;
- to make referrals to mediation; or
- for appropriate practical support for each of you and any relevant children.
As part of each of these potential processes that you will have to consider it is important that you are clear what we can or cannot do for you. We can provide you with detailed advice and information but in order to do this we need to identify what will or will not work for you and you would need to be aware of the likely legal costs to you and who that might also involve including Barristers, Accountants, Pension Actuaries and Family therapists as appropriate. Costs can differ hugely dependent upon the personalities involved, the parties’ own needs and the circumstances of the case
Who represents your Partner, Husband or Wife?
This can be a very important decision and may indeed impact upon which process is ultimately chosen. That representative should ideally be someone who can identify and work with your Partner, Husband or Wife but at the same time be able to acknowledge your own concerns and issues that you will have during this process.
It is important to know that any such Solicitor is a member of Resolution and is also a collaboratively trained Solicitor, so that all the above noted options remain open to you both.
Fixed fee initial meeting
Paul Wild offers a fixed fee initial meeting of one hour to discuss your personal circumstances, your options and your next steps, at a cost of £95.00 ( inc VAT) , followed by a free letter of advice.
Paul will meet you in our Reading Berkshire office. If you would like to meet with Paul please telephone the office so that an appointment can be arranged.
Paul is a Solicitor specialising in Family Law and is a member of Resolution (formerly The Solicitors Family Law Association) and has trained in and practises both Mediation and Collaborative Law and is a member of Reading Family Mediation (“RFM”) and also the Thames Valley Collaborative POD.
To contact Paul, please telephone 01189589711. If you prefer you can email Paul : [email protected]