Process
Suitable circumstances
Benefits
Case study
Comment
Anyone going through divorce or separation in England and Wales can make an application to the Family Court to have their legal dispute resolved.
The Family Court seeks to resolve legal disputes between individuals in respect of divorce, financial claims and child arrangements on separation or divorce. The process varies depending on the nature of the issue.
Getting a divorce
To obtain a divorce or dissolution, one party must petition the court. The judge will consider the petition and dissolve the relationship by way of decree nisi, followed by decree absolute, or conditional order, followed by a final order (as appropriate). It is rare for a petition to be contested if it is drafted carefully.
Financial claims
In financial claims, the court aims to make the financial order that it considers to be most fair, bearing in mind all of the circumstances of the case. It has a wide range of powers. Before the court can distribute resources, it must calculate what they are. Most financial claims involve detailed disclosure and valuation exercises, so that the court can allocate resources fairly.
Child arrangements
In cases involving children, the court will look to make an order that best promotes the welfare of the child who is the subject of the application.
In all types of case, the court will encourage settlement wherever possible, but, ultimately, if parties cannot reach an agreement, then the court will decide for them. Some applications can be relatively simple to determine because they involve discrete issues, but others can be complex and take months to be determined.
The certainty and finality of a court process is suitable for many circumstances, but it is not necessarily the most proportionate use of time and money. Family Court decisions are highly discretionary, and different judges can take different views, making outcomes unpredictable.
The impact of contested court proceedings can be difficult to endure. Parties often find court proceedings costly, stressful and difficult. There are nonetheless circumstances where a court should be the first port of call. For example, if a party suspects:
- risk of harm to a child;
- that the other party is dissipating assets in financial proceedings or adopting an unreasonable approach towards disclosure or negotiations; or
- risk that the other party might be able to initiate divorce and/or financial proceedings in another country that is less advantageous.
If it is necessary to seek court intervention, it is often possible to limit the court's involvement to the issues where a judge's input is required. For example, the parties may require the court to grant orders to secure assets or to provide an indication about the likely outcome in financial proceedings but subsequently negotiate or mediate the remaining issues. Starting court proceedings does not mean that the court must then determine every issue between spouses. Court proceedings can in fact sometimes be a useful backdrop to, and provide a timetable for, other forms of dispute resolution.
There are several benefits to resolving disputes before the Family Court in England and Wales.
- finality – parties can often achieve finality. Disputes resolved using other methods, such as mediation and arbitration, will usually need the seal of approval of the Family Court to become final and binding;
- certainty – separating couples can have certainty to make decisions in reliance on the outcome;
- enforceability – disputes resolved using other methods usually require an order to ensure that agreements can more easily be enforced;
- precedent value – sometimes one party can point to a judgment or court order to use as a precedent to bolster their position in subsequent proceedings; and
- a set timetable – a set timetable can often help parties to resolve their disputes using other methods, knowing that the court timetable is running in the background.
A separating couple are on relatively good terms and have agreed the shared care arrangements for the children. The husband has always been secretive about his business interests and is keen to conclude a financial settlement as soon as possible.
It will be essential that the wife has a proper understanding of the husband's business before she starts to negotiate a settlement and that he provides financial disclosure. To this end, it would be sensible to make an application to the court, and for the disclosure process to be dealt with in court proceedings. This has the advantage that the court will set a binding timetable and can make orders compelling the husband to disclose information.
If the disclosure process goes well and the husband is cooperative in providing information, the parties will then be in a position to select the negotiation process that is most likely to bring about settlement. For the purpose of this case study, the wife selects a private financial dispute resolution (FDR) appointment as being the most appropriate (a private FDR being the private equivalent of the second hearing in the court process to determine financial claims). The wife is worried that the husband will talk over her in mediation and believes that he will be more receptive to hearing an indication from an experienced judge. She is reassured that if the private FDR is unsuccessful, the parties can return to court, and a judge can determine the issue, before too much time and money is wasted.
The Family Court in England and Wales has unparalleled expertise in navigating family issues and addressing international family law issues. The intervention of a Family Court judge can provide important impetus to parties to negotiate an agreement, particularly where they have become locked in negotiations and unable to progress. The neutrality and fairness of a Family Court judge can also help parties to accept the outcome and conclude the issues, enabling parties to move forward in life.
For further information on this topic please contact Joanne Edwards, Rosie Schumm, Simon Blain or Matthew Brunsdon Tully at Forsters LLP by telephone (+44 20 7863 8333) or email ([email protected], [email protected], [email protected] or [email protected]). The Forsters LLP website can be accessed at www.forsters.co.uk.