The ‘Good’ Divorce

Quite often, the decision to separate may be instigated by one party. When this happens, the person instigating the separation has usually spent some time processing how they feel and planning their future. The other party may not have seen the separation coming and as a result, they may feel a wave of emotions such as upset, anger and fear for the future.

It is important that all parties obtain legal advice as soon as possible so that they can understand the options available to them and also build a rapport with their lawyer who will help navigate them through the process.

No Fault Divorce

As of 6 April 2022, the ‘no fault’ divorce system came into effect. This means that parties looking to obtain a divorce no longer need to apportion blame and/or be separated for a significant period of time. Instead, parties need to simply show that they have been married for at least 1 year and that the marriage has simply broken down irretrievably.

Stay in control

Getting a divorce usually involves resolving other issues such as the financial and property matters, together with arrangements for any children of the family. It can seem overwhelming to try and deal with matters all at once and it is important that you feel in control so that negotiations move at a pace you feel comfortable with.

With the right approach, both parties can feel in control. Whilst emotions may be running high, it is important to take a measured approach rather than simply reacting to how you may be feeling at the time.

A ‘good’ divorce is one that:

1. provides a fair settlement to both parties;
2. is cost-proportionate; and
3. is completed within a reasonable time frame (which is usually between 6-18 months).

First steps

The first step is to see whether you can reach an agreement directly with one another, or through an independent Mediator. You can take legal advice upon the discussions had with the other party at any time and it is important that you do take independent legal advice before reaching a final settlement.

If you are unable to reach an agreement directly or via Mediation, then negotiations through Solicitors is usually the next step. Whilst your Solicitors should do everything possible to help you reach a settlement, sometimes, you may need an issue resolving with the assistance of an external authority figure such as a Judge or Arbitrator.

The presumption, in such circumstances, is that an application to Court will prove necessary. Court is not the only option, however.

Financial Arrangements – Private Financial Dispute Resolution (Private FDR)

The former President of the Family Division, Sir James Munby, described Private FDRs as follows:

‘A Private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a Private FDR Judge. That person may be a solicitor, barrister, or retired judge. No additional qualification is required. The Private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.’

You do not need to be in ongoing Court proceedings before a Private FDR. If you have already issued an application for financial remedy then the parties can agree to either adjourn the proceedings pending the outcome of the Private FDR or they can ask for a short directions/case management hearing to be listed on a date after the Private FDR which can be vacated if no longer required.

Benefits of having a Private FDR

• Both parties are involved when selecting which ‘Judge’ to instruct.
• The ‘Judge’ will be a specialist family law practitioner with appropriate experience to consider the case (avoiding the risk of appearing before a Deputy District Judge in Court who may or may not be a family finance specialist).
• The ‘Judge’ will only be dealing with your case on the day of the Private FDR and they will have ample opportunity to consider the papers well before the Hearing. When attending Court for a Private FDR, the Judge may or may not have had time to review your papers in full. In addition, they will have several other hearings on the same day.
• Both parties can ensure that their chosen legal representatives (including Counsel and their Solicitor) are able to attend – rather than being at risk of the Hearing being listed on a day when their Solicitor is on holiday, or their preferred Counsel is unavailable.
• Scheduling a Private FDR is much quicker than waiting for an FDR Hearing via the Court process.
• Both parties will select the date, time, and venue for the Private FDR. Solicitors/Barristers’ offices tend to be much more comfortable and practical, in comparison to the Court where you may or may not be able to secure a private room. The Private FDR can also take place remotely.
• Refreshments can be arranged and provided at the venue of choice – unlike the Courts which usually only have a vending machine or no provision at all.
• The ‘Judge’ will provide an indication to the parties setting out their view of the case and how they consider the assets should be divided. The ‘Judge’ and respective legal team will work together for the entirety of the day to try and reach a financial settlement. This usually means that there is a higher chance of concluding matters at the Private FDR than if the parties were simply attending an FDR Hearing via the Court.

Disadvantages of a Private FDR

• The main ‘disadvantage’ to parties is the additional cost involved in instructing the Private FDR “Judge”. The costs of instructing a Private FDR ‘Judge’ are usually in the region of c.£5,000+VAT depending on seniority. The cost of instructing the Private FDR ‘Judge’ is usually divided equally between the parties. Given the benefits set out above, most parties would consider costs of c.£2,500+VAT each to be an investment well made.
• The Private FDR ‘Judge’ cannot make a final order or deal with case management directions if the matter does not settle.
• A Private FDR Hearing may not be suitable if one party fails to provide full and frank disclosure.

If an agreement is reached following a successful Private FDR, then the terms of the same will be set out in a Consent Order and sent to the Court for a Judge’s approval. If the parties do not reach a settlement at the private FDR then the case will progress to either a Final Hearing (if proceedings have already been issued) or alternatively an application for Financial Remedy will be made.

There is no one size fits all approach to divorce. It is a very personal thing, and each case is different. Be kind to yourself and remember that you have options.

Arbitration

As per The RT Hon Sir Andrew McFarlane: President of the Family Division, 31 October 2022:

“Whilst it is obviously necessary for there to be access to a branch of the justice system in the event of an intractable dispute about children or family finances following a break-up, taking proceedings in the Family Court should be the option of last resort, rather than, as it is seen by many, the first port of call.”

Arbitration works similarly to Private FDRs and is another useful method of assisting parties to resolve matters in dispute without the need to attend Court. Much like at a Private FDR, the parties are in control. The parties instruct any experts required, by agreement, and they also decide what issues should be included for consideration as well as the extent of any disclosure. The Parties choose the Arbitrator, and the date is listed in accordance with their mutual availability (including preferred legal representation). Parties can also decide whether the matter shall be dealt with by way of written submissions only or whether an oral hearing is necessary.

Unlike a Private FDR, Arbitration can apply to a wider ambit of cases – such as financial/property matters arising from a divorce and/or issues concerning a child.

At the end of Arbitration, the Arbitrator will issue the ‘determination’. The determination is equivalent to a final judgement, and it is binding upon the parties. Once the determination is received, a Consent Order is then prepared and sent to the Court for sealing.

As can be seen, there are a number of options available to parties to navigate them through the difficulties of separation. If you or someone you know would benefit from speaking to someone about any Family Law issue, please get in touch with Shelley DeWorringham on 01926 356052 or email shelleydeworringham@alsterskelley.com.