Alternatives to the Family Court

Friday Feb 03, 2017 Court , Divorce

You’ve decided to separate from your partner and now you need to organise everything that goes along with that separation. The money, the children, the assets… LIFE! but who wants to go to Court these days? You’re on speaking terms with your ex but you’re not exactly on the same page about everything. Or maybe you just don’t see the point of draining hundreds of pounds in barrister/solicitor fees and want to utilise the support services available outside of the family courts.

draining-money

The options available are really designed for those who have not been subject to domestic violence, intimidation or harassment at the hands of their ex-partner. If any of these relate to you, you should not feel in anyway pressured to engage in anything outside of legal proceedings.

Here we will look at the alternatives available to the family court:

Mediation – always a healthy start to any break down or need for resolution. Mediation is a voluntary process where you and your ex-partner can come together or separately to discuss concerns with an impartial professional third party. The mediator is not there to provide you with legal advice however therefore it is always wise to seek independent legal advice in relation to the discussions and agreements you may reach before signing any formal contract.

If you wish to formalise any agreements you make during your mediation sessions you can do so, still without having to attend court. Any agreement reached can be turned into a consent order which is a legal document containing your agreed points. The consent order is sent to Court to be reviewed by a Judge who then decides, on paper, whether the contents appear fair and appropriate. If so, it is sealed, approved and made binding.

mediation

Remember when you agree to enter into mediation you are agreeing to compromise, so you must try and enter with an open mind and a willingness to meet in the middle, if not letting a go a little more than intended at times. It could potentially save you in considerable time and costs in the long term.

When it comes to private family law matters, it is now procedurally necessary for potential applicants to attend or at least attempt to attend Mediation Information and Assessment Meeting (MIAM). This was implemented not  long after legal aid cuts were announced as a flood of litigants in person, undeterred by the prospect of representing themselves came swarming into the courts confused and unknowing of the procedure. As a result it was proposed that mediation is initially attempted to avoid the unnecessary amount of applications that can be resolved before court intervention.

Again this will involve a mediator, who sits down with both you and your ex-partner together or separately in order to reach a compromise through written agreement [a good will gestured agreement] or agreement that can be formalized quickly when the matter reaches court.

There are however a number of reasons as to why MAIM may not be appropriate and if one of the  below reasons are met then you’re able to skip the process and head straight to issuing your application to court:

  • There is evidence of domestic violence through police intervention/reports, conviction for domestic violence, GP records, non-molestation/injunction orders made in the last 24 months.
  • An application to MAIM had been made and an exemption was made which lasts for 4 months.
  • You’re without the details for the other side, they are in prison or you need to make the application ex parte [meaning without the other persons knowledge and urgently].
  1. there is risk to the life, liberty or physical safety of you, your family or your home;
  2. You will suffer significant hardship;
  • any delay caused by attending a MIAM would cause
  1. a risk of harm to a child
  2. a risk of unlawful removal of a child from the United Kingdom, or a risk of unlawful retention of a child who is currently outside England and Wales
  3. there would be problems with dealing with the dispute – for example evidence will be lost;

Collaborative family law 

  • Collaborative family law can be used to resolve finances further to divorce or matters concerning child arrangements. Collaborative family law involves negotiating with your former partner in a series of face-to-face meetings and through correspondence in an attempt to avoid going to court and to save costs. Unlike mediation, in collaborative law you attend these meetings with your lawyer so you and your former partner will be negotiating with each other with the help of your legal representatives, who must both be trained collaborative lawyers. In addition, psychologists or counsellors can be invited to join the meeting to support you and/or your former partner in reaching an agreement.
  • If you are able to reach an agreement your solicitor may draw up a consent order (see above). If you are unable to reach an agreement you can still apply for financial relief or for a child arrangements order, but you will have to consult a different solicitor because you cannot use the same solicitor who assisted you in negotiations.
  • Collaborative law can be a very expensive process and it is important that you ensure your solicitor sends you regular bills and that you keep an eye on the costs. It is also important that you consider whether you will be able to reach an agreement with your former partner or ex-husband through collaborative law. If you are unable to reach an agreement through this process you will have to make an application to the Family Court and instruct a different solicitor or represent yourself. Instructing a different solicitor will add additional costs.

If you have experienced domestic violence then resolving financial or children matters through collaborative law will not be appropriate.

Family arbitration 

  • Arbitration is another form of dispute resolution where a legally trained person makes a decision which should be impartial after considering all the circumstances.. The decision is legally binding if the correct process is followed. Family arbitration is only suitable to resolve financial matters following relationship breakdown and is not available to resolve matters concerning children such as who the child will live with or spend time with.
  • You and your former partner will need to agree on an arbitrator. The arbitrator’s role is to consider all the evidence in the case and apply the law to make a decision on how your finances should be split. The arbitrator must be legally qualified and registered to act as an arbitrator in England and Wales. You will need to enter into an agreement with your former partner that the arbitrator will adjudicate the dispute and make a decision on the financial arrangements at the end of the process.
  • The arbitrator must be a member of the Institute of Family Law Arbitrators.  All arbitrators are qualified family solicitors or barristers who have completed the accredited arbitration course.
  • Arbitration can save money in comparison to going through the family court process but it can also be a very expensive. There are a range of costs for using arbitration including arbitrator fees, the cost of venue hire and each party will have to pay their own legal costs. Therefore, the initial costs for arbitration may be more expensive than going to court but it could save money in the long run. The parties will usually submit their proposals and the arbitrator will set a timetable for financial disclosure and for deciding the final outcome. At the end of the process, the arbitrator will make a decision on how the financial assets should be divided. This is not automatically legally binding and must be made into a consent order and then submitted to the court. The order could be disputed by either party, but it is likely that the court would uphold it unless it decided it was substantially unfair to one party.