Sorting Out A Separation

When couples separate, there are a number of ways to reach an agreement about children and/or financial issues.

We have come a long way from the notion that involving solicitors will aggravate an already difficult situation. Our role is to advise on the quickest and cheapest way to facilitate a separation and to keep hostilities to a minimum.

There are six options for sorting out separation. These are:

• Do it yourself
• Solicitor negotiation
• Mediation
• Collaborative practice
• Arbitration
• Going to court

For couples who are married or in a civil partnership, any agreement should be set out in a court order, called a consent order. This is a document detailing the precise terms of the agreement. It is signed by both parties and sent to the court for approval by a judge, without any need to attend a formal hearing.

Whether an unmarried couple requires formal documentation is depends on the circumstances and advice should be sought.

DIY

In straightforward cases, couples can reach an agreement between themselves.

It is a good idea for any decision to be looked at by a solicitor to ensure it is workable and if necessary, to prepare a consent order. In addition, some couples may reach an agreement on most issues, but need the assistance of a solicitor or mediator to tie up any loose ends.

Solicitor negotiation

This involves both parties instructing respective solicitors to negotiate a settlement on their behalf, which can be through correspondence or at a round table meeting.

In some cases, solicitors will negotiate with the other party directly if they choose not to have representation. A consent order can then be prepared if an agreement is reached.

Mediation

A mediator is trained professional whose role is to help separating couples reach an agreement. They do not take sides or give advice.

Mediation is not counselling – the mediator is there to sort out a practical solution only – and parties usually sit in the same room but not always.

The use of mediation to settle family cases has soared in the last 10 years as it is a really effective way for parties to focus on the issues in dispute and reach a resolution. It is still a good idea to have a solicitor to advise on any agreement, but this is not compulsory. Again, one of the solicitors can prepare a consent order based on the results of the mediation.

These days, court rules require that parties must have attempted mediation before an application can be made to court.

Collaborative practice

This involves the couple and their solicitors agreeing at the outset to hold a series of meetings, at which the agenda is determined before each appointment.

Any family solicitor wanting to participate in collaborative practice must be qualified to do so. The idea is that parties agree at the beginning to try and resolve their issues without going to court. If the process breaks down, different solicitors must be instructed.

Arbitration

An arbitrator is effectively a judge who is paid by the separating couple.

Parties agree to let the arbitrator decide the outcome of the case after considering the evidence and this decision of is then binding. The advantage of this method over the court process is that you have more control of timescales and venues.

For more information on arbitration visit: https://www.tayloremmet.co.uk/blogs/family-arbitration-a-future-for-private-judging/

Going to court

If it is not possible to settle your separation, court proceedings may be the only option.

One party makes an application and the court issues a timetable with the first hearing and dates by which certain documents must be prepared. The process involves up to three hearings and can take a very long time.

Even when court proceedings are underway, the emphasis remains on parties reaching an agreement. The case can be settled at any point during the court process and this can then be embodied in a consent order. Relatively few couples go to the final hearing stage, at which a judge actually imposes a decision.

What next?

Only arbitration and court lead to final settlements being imposed rather than parties reaching an agreement, either between themselves or with professional help, so in some cases, separating couples may try two or more of these routes.

If you are considering a separation, be reassured that involving solicitors is not going to set you on a rollercoaster you can’t get off. We will always advise on the best option for you, even if that means you don’t need our help.

The Resolution leaflet “Separating Together” explains the options outlined here in more detail.