Ways of reaching an agreement
When parties separate there are invariably a number of issues that require to be resolved. It is sometimes worthwhile considering the way in which you may go about resolving these issues, as it can have a long lasting effect on the end results and, in particular, on your future interaction with each other, which is especially important if there are children.
Whilst it is generally accepted that there may well be some very difficult decisions to be made, it would be a great pity, particularly for the sake of the children, if the parties were unable to speak to each other in the years to come. There are a number of options open to you. No one route is preferable and it is up to the parties involved to decide which one best suits their needs and circumstances. (a) Reaching an agreement yourselves
Firstly, sometimes parties are able to agree without any assistance from any outside source. This may be possible on some occasions but usually a breakdown of a relationship also entails a breakdown of communication so very often this first route is not possible. (b) Going to a Solicitor
Secondly, parties can instruct solicitors to negotiate on their behalf. This can be successful and specialist family lawyers generally appreciate the difficulties and emotional trauma that there is following a breakdown of a family relationship. However solicitors are adversarial in their approach in the sense that they are looking after their own client's interests. The process can be frustrating because of the nature of communication via solicitors and their clients, this can sometimes slow the process down. The parties will have a limited amount of resources and if they have two solicitors then the legal costs need to be considered as the solicitors will have to be paid from these resources. (c) Mediation
Thirdly, there is a mediation route. This is a voluntary process where the parties meet together with a neutral mediator who has been specifically trained to try and work with the parties to reach an agreement. The mediator will not tell you what to do, but rather will work with you in arriving at your own solutions. You will still require a solicitor to implement what decisions may have been arrived at, but with all the discussion and negotiation already out of the way, this could be a straightforward and less costly process. (d) Collaborative Law
Fourthly, there is a new procedure called Collaborative Law whereby specially trained solicitors will act on behalf of their client to negotiate matters in a collaborative way without going to court. The collaborative process is done by both parties sitting down at meetings with their respective solicitors and trying to reach an agreement on matters. There is a commitment by the solicitors not to go to court. (e) Going to Court
Lastly, parties can go to court. This is the route which should be avoided if at all possible. Courts have the reputation of being expensive, slow, very time consuming and a good destroyer of any semblance of co-operation that the parties still have. The main difference about going to court, however, is that you are surrendering the decision making to someone else, ie the sheriff. With the other options described above, you are involved in the decision making process throughout and you know what you are agreeing to. If you go to court the Sheriff will make the decisions for you. Because the court has so much discretion, particularly in financial matters, there is no knowing what the court will do. It is therefore a gamble and should be avoided if possible. How do I get my spouse to agree? What happens if we can't agree?Whilst these options are available to all couples going through the process of separation and divorce, it requires both to decide on the same course of action to progress matters. If one party prefers the mediation or Collaborative Law route, and the other does not, they can simply take matters into their hand and go straight to court. It is therefore not always possible to dictate what route you want to go down but you should be aware of your options. There is a very typical situation when one party wants to try and resolve all financial issues and the other party does nothing and ignores correspondence. This can be a problem because although someone can apply to the court for maintenance only, if they are trying to resolve a capital sum award, a transfer of property order or a pension share order, they can only do so as part of a divorce action.
In some instances people who are separated may not be able to seek a divorce until after two years have lapsed from the period when they stopped living together as husband and wife. In such cases they are often unable to resolve financial issues such as capital, pensions, houses etc. until that period has lapsed. What happens if we have agreed?If you have managed to reach an agreement with your spouse on all the various issues we can prepare a Separation Agreement which sets out what has been agreed and a timetable for what is to be put in place and is binding on you both, then an Undefended divorce can go ahead in due course. If you would like a quote for a Separation Agreement please complete the form.
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