To be in the unenviable position of considering a separation or divorce can feel very isolating – no-one else can understand what you are facing.
Grant Thornton’s annual matrimonial survey suggests that, for the fourth year running, falling out of love is the most common practical reason for the breakdown of marriage. Extra marital affairs comes a close second.
Divorces are commenced by way of a petition. This has to confirm the reason for the divorce, namely the irretrievable breakdown of the marriage. Contrary to popular belief, this alone is not sufficient to enable the divorce to proceed. The petition then has to specify whether this was caused by the other party’s unreasonable behaviour, adultery or desertion. Alternatively, it can state that the couple have lived apart for two years and both consent to the divorce, or they have lived apart for five years. The survey shows that the three most common types of petition are based on:
- unreasonable behaviour
- separation for two years with both parties agreeing.
It is important to recognise that a divorce, by itself, does not sever the divorcing couple’s financial ties. The recommended most common way to achieve this is by way of court order.
There are a range of possible outcomes which can be tailored to suit the various future needs of husband and the wife. These can be recorded in an agreement which can then be approved by the court.
The survey highlights that there are routes that can be used to try and reach agreement. Almost a quarter of people now use a private financial dispute resolution hearing whilst another quarter consider arbitration as the way forward.
Private financial dispute resolution
Private dispute resolution mirrors the court process where the District Judge giving an opinion, which is not binding, as to a possible outcome to assist the parties to negotiate in the court building. In private hearings couples are now choosing to pay a lawyer to listen to the facts put forward and give their opinion, as a neutral expect, as to possible outcomes to aid their negotiations.
By contrast, arbitration sees the couple paying a specifically trained lawyer to consider the facts and the law and to provide a binding decision (known as an award) which they can then convert into a court order.
Mediation and collaborative law
Mediation and collaborative law also proved an attractive approach to many. In mediation negotiations are led by a mediator to keep the discussions on track and to facilitate the decisions being made by the parties. With the collaborative law approach specifically trained lawyers attending meetings with the couple, to enable the lawyers and couple to decide the best outcome, together.
These differing but innovative new services meet the growing need for non-court intervention. They involve an independent third party assisting both parties to reach an agreement. They can limit the overall financial cost for the parties delay in resolving the case and lessen the emotional and practical strain on the family of continuing litigation. These factors are all making these services increasing popular although the parties may still have to turn to court assistance if negotiations do not prove to be successful.
Choosing to divorce is an extremely emotional and difficult decision. However, those faced with that option are by no means alone. Many are making the sensible choice to try and separate amicably, avoiding the expense and heartache caused by contested court proceedings.