Divorce or Separation – what’s the best way forward?
Many marriages, civil partnerships and other cohabitation arrangements end in separation, and in the case of marriage, divorce. Trying to reach a resolution of the issues between the parties can be extremely difficult. In a high number of cases, solicitors will be instructed to help achieve this resolution.
It’s not all court proceedings and “he said this and she said that”! There are a number of options available to “manage” how the parties can achieve a resolution. In this article we’ll look at these options.
Each party has rights on separation or divorce and some of these conflict. Once a client has been advised of those rights, they may take a very different stance from that taken before they sought legal advice. Solicitors will give clients advice based on the law.
Solicitors don’t make decisions for clients and only take actions based on discussion with and instructions given by the client.
When parties separate, they have various options available to resolve issues between them. Those issues are likely to involve children, money and assets. The different needs of the parties will impact on the shape of any resolution.
When parties separate, their first instinct is to protect their position. They normally seek advice about this from a solicitor. At the first point of contact with a solicitor, the options available to resolve the issues should be set out. The main options are Solicitor Negotiation, Collaborative Practice, Mediation, Arbitration or Litigation.
Solicitor Negotiation
Until recently, this was the most common form of resolution. Each party would instruct his or her own solicitor. After receiving instructions, one solicitor writes to the other party’s solicitor setting out the client’s position and seeks information about the other party’s position. The other party’s solicitor takes instructions and then replies setting out the other party’s view. This is then explained to the client and further instructions are sought. This process and exchange of letters repeats itself until an agreement is reached between the parties. The terms of the agreement are set out in a Minute of Agreement once an agreement in principle has been reached. Both parties sign the Minute of Agreement. That agreement sets out the arrangements between the parties and is binding on both parties. If an agreement cannot be reached, the next option is usually litigation.
There are, however, three alternative methods of reaching an agreement between the parties that can lead to a quicker and, perhaps, cheaper and more equitable settlement – Collaborative Practice, Mediation or Arbitration.
Collaborative Practice
Again, each party will have his or her own solicitor. In this case they will sign up to a collaboration agreement committing themselves to settle the issues between them without resorting to the courts.
Both parties and their solicitors will be present at meetings. The parties will set out and discuss the issues between them, look for solutions to the problems facing them and attempt to reach an agreement across all these issues. If further information is needed, third parties can be asked to attend and supply information or give advice to the parties in the meeting – a common instance of this would be specialist financial advice.
Outwith the meetings, each of the parties will be advised separately by their solicitors. What takes place in the collaborative process is confidential with the exception of any financial information which may be used outwith the process.
Once an agreement is reached between the parties, it is then reflected in a Minute of Agreement that then becomes binding on the parties.
If matters cannot be resolved and one of the parties decides to seek a resolution through litigation, then the solicitors involved in the collaboration cannot then represent the parties in the court proceedings.
Mediation
Mediation is another alternative means of resolving issues between the parties. Again, whilst each party will have his or her own solicitor, they agree to appoint a Family Mediator to mediate arrangements between them. The Mediator doesn’t represent either of the parties but seeks to work with the parties to resolve the issues between them and to help them reach agreement on what should be done. This normally involves a series of meetings with the parties. The Mediator will provide a summary of the mediation and when it is successful, a Minute of Agreement can be prepared reflecting what’s been agreed in the Mediation. This will be binding on the parties. As in the collaborative process, confidentiality is preserved except in relation to financial information which can be used outwith the process.
Arbitration
This is perhaps the latest of the alternative dispute resolution options available to the parties. Arbitration can be used where there is an issue of principle between the parties that cannot be otherwise resolved using Collaborative Practice of Mediation. Examples of this might be what the relevant date of separation is, how much maintenance should be paid, what the matrimonial assets are worth or the resolution of specific matters in relation to the children. These are just some examples of the types of things that can be decided by arbitration.
The parties, assisted by their solicitor and, sometimes, the arbiter, set out the scope of the arbitration and put that into an Agreement to Arbitrate. The arbitration process and timescales are agreed. For instance, are there to be only written submissions or oral submissions and/or evidence or both?
Once the arbiter has made a decision, it is then binding on the parties as agreed in the Agreement to Arbitrate.
Collaborative Practice and Mediation have the parties at the heart of the whole process with the focus on the best outcome for all involved. Arbitration tends to focus on specific issues in dispute between the parties. These methods of dispute resolution can also provide solutions that would not otherwise be available to the courts if the parties had to resort to litigation.
There are obviously circumstances where Collaborative Practice, Mediation and Arbitration are inappropriate, for instance, where there are concerns about the welfare or security of the children or where there is an element of domestic violence, and the only options available are solicitor negotiation or litigation.
Litigation
Finally, if all else fails, the parties can resort to the courts who will then hear the facts and circumstances and impose a ruling that it binding on both parties. Litigation can be lengthy and expensive and, sometimes, delivers a resolution that neither party is happy with.
Contact our experienced family lawyers
If you find yourself in the unfortunate position of separating from your spouse or partner and require our help, call us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew)
Separation and Divorce – what are my rights?
Life is never straightforward! When couples are considering separation or divorce, they are likely to face a wide range of issues. Emotions of hurt and anger, though understandable, must be kept in check at this very difficult time.
Although it is extremely difficult to take the emotions out of the situation, one way of doing this is by putting a Minute of Agreement into place. If you do this, you will be able to set down clearly what has happened up until now and what is to happen in the future. It will also deal with the practical matters such as what happens to the children, money, assets and debts.
The financial aspects of your separation will involve a valuation of your matrimonial assets. When dealing with these you will need to address the following issues:
- You need to work out the legal date of your separation. Silly though this may sound, this is the date on which you actually separate. This is the date on which most matrimonial assets and debts are valued.
- The law isn’t interested in apportioning “guilt” and this will not impact on any settlement.
- Even if the family home is owned by one spouse, the other spouse can legally remain there until the marriage ends.
- If you try to sell your home while your spouse remains living there, you will need his or her consent to the sale. Any purchaser cannot force your spouse to move out.
- Matrimonial property is anything that is owned by the parties that has been acquired after the date of marriage but before the date of separation.
- Inherited property and gifts are not matrimonial property. However, if you use your inheritance to buy an item for use in the marriage, that item will then become matrimonial property.
- If you acquire your home before marriage, with the intention of it being the matrimonial home, it will be classed as matrimonial property.
- Debts usually remain with whoever acquired them. Joint debts such as a mortgage are divided equally.
- All assets and debts need to be valued. This might mean involving surveyors and other professionals to conduct the valuation. If an asset is inherited, you will need to provide evidence of the inheritance.
Having dealt with the valuation of the actual assets and debts, we now need to consider how these are properly dealt with. This gives rise to another set of issues you need to address:
- The law says matrimonial property should be shared fairly. The net value of the property is calculated and split. This is usually an equal split. However, if special circumstances can be shown, this might not always be the case. If you own more matrimonial property than your spouse, a balancing payment will have to be made.
- If there are circumstances where an equal division would be unfair, we will help you assess those circumstances and work out if that might warrant an argument for a greater share in your favour.
- If you have been economically disadvantaged by the marriage – for example, by taking a career break to raise children - you might be able to claim or agree a capital payment as compensation.
- If there are children under 16 and you are their main carer, you might be able to agree (or a court might order) the matrimonial home to be transferred to you to allow the children to remain there.
- A court might award you periodical allowance for a short period to allow you to re-train in a new job or career.
- You must put your feelings to one side and make residence and contact arrangements. These must consider the best interests of your children. A court may take your children’s views into account. If no agreement can be reached the court can impose appropriate arrangements.
- Any arrangements made during separation may need to be changed as your children get older (this can be built into any Minute of Agreement).
- There may be a need for Aliment. This is a payment that arises out of an obligation to reasonably support your former spouse and your children. This takes into account your needs and resources, your earning capacity and other relevant circumstances.
- Conflict of interest rules mean it is not appropriate to have the same solicitor representing your spouse and representing you.
- Negotiations between solicitors will normally take the form of letters sent back and forth and/or meetings between them. You and/or your spouse may or may not be present at these meetings.
- Once an agreement is reached a Minute of Agreement is signed and registered in the Books of Council and Session.
- Be patient – it can take some time to reach a negotiated settlement.
Contact Us
We appreciate that this is a very difficult time for clients where emotions tend to run high. Please don’t give over things you don’t have to or accept less that you’re entitled to. Please do take independent legal advice before signing anything. If you need to talk to someone then please contact us. You can be assured that our experienced team will handle your query with sensitivity and in the strictest confidence. You can contact us on 0141 887 5271 (Paisley) or 0141 886 5678 (Renfrew).