Dividing the matrimonial pot on divorce – Is Court my only option?

By Anna Patsalides

Associate Solicitor

25 January 2024

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This is a question which comes up time and time again.

Making an application to the Court is not the only option available to separated couples who cannot agree how to divide their finances on divorce. There are a range of different options available which separated couples should be encouraged to consider before starting Court proceedings.

What is Alternative Dispute Resolution? (ADR)

Alternative dispute resolution, often referred to as ADR, is enshrined in statute and in the Family Procedure Rules.  The Court signposts parties to ADR at the very outset of the case, once their application has been submitted, and at every Court hearing thereafter.

What different forms of ADR are there?

Mediation

Mediation involves a third-party mediator who will support parties with discussions and negotiations. The mediator will not provide legal advice but can guide the parties in the direction that aligns them with the current law.  Mediation is one of the most common forms of ADR; it allows the parties to negotiate directly and keeps the costs down. It is important that parties also seek legal advice alongside mediation.

If parties are considering mediation, I would encourage them to also arrange an initial appointment with a solicitor in the first instance to better understand what they might be entitled to on divorce.

In some instances, mediation is not appropriate. This is especially the case where one party requires additional support to ensure the agreement which is reached is fair for both parties. Some mediators can host meetings which include the solicitors too, covering this requirement for additional support.

Collaborative law

It is possible for both parties to instruct collaboratively trained lawyers who can hold roundtable discussions regarding settlement. This can be particularly useful in cases where both parties are committed to taking a collaborative approach to matters and wish to avoid litigation. It may not be appropriate if either party suspects the other is not disclosing details of all their financial assets.

Private Hearing

Another option available to parties is to instruct a private Judge to help them to resolve matters.  This could be done either alongside court proceedings, or as an alternative to Court proceedings. The Judge will consider the papers and give the parties a steer as to what he or she would Order if the case went before them at a Final Hearing.  Both parties will likely share a real willingness to settle. The Judge’s decision is not binding and so it means that the parties maintain control of their case but will hopefully help to narrow the issues in dispute in the case and bring the parties one step closer to settlement.

Arbitration

Arbitration involves a similar process to Court Proceedings, the decision will be binding, but it is an alternative to having to wait for 1½ – 2 years for a Final Hearing. A neutral arbitrator is appointed to make a final binding decision. This has the advantages of being held in private at a convenient date for both parties.

For some people, however, it can feel like Court can be the only option. This is particularly so, where there has been a difficult separation and emotions are heightened, or where there is an imbalance of power between the parties. In some instances, parties can reach an impasse, but this does not necessarily mean that Court proceedings will become inevitable. It is important that early advice is sought so that couples can consider what options are available to them.

In conclusion there are many alternatives to Court Proceedings which can lead to a quicker and less costly resolution. Parties should consider seeking independent legal advice in the first instance to help better understand which option is best for them.

If you are in the process of getting divorced or would just like to discuss what your options are going forwards, please get in touch today on 01727 845245 or contact Anna Patsalides on anna.patsalides@taylorwalton.co.uk.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.