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Breaking up is hard to do

23 Sep 2015

Divorce is well known as being one of the most stressful life events. We often hear of “divorce battles” but it need not be that way, and choosing the right lawyer is key. At Hay & Kilner we demystify the legal process and provide you with clear advice about your options.

It may be possible for you and your spouse to amicably agree a financial settlement so you may only need a lawyer to draft a legally binding agreement. Your spouse can then choose whether they wish to employ their own lawyer to provide independent advice on the contents. This is recommended, but not essential. The lawyer who drafted the agreement can only represent one party, not both.

Sometimes a couple agree most of their settlement directly but are not sure how to deal with certain aspects, such as shares in a business, pension funds, or maintenance if one party earns substantially less than the other. If this is the case it is advisable to take specialist advice from a family lawyer who can explain the law in this area, and suggest possible solutions. You can then use your new found knowledge to continue discussing the settlement directly with your spouse, or ask your lawyer to continue the discussions on your behalf, either with your spouse directly, or their lawyer, if they have appointed one.

Collaborative family law is a process where parties are willing to talk to each other to reach settlement, but want help from their lawyers during the discussions. This process involves both parties and their lawyers signing an agreement at the outset to say they will be honest, open, civil, and courteous throughout the process and put their children first. They also agree to do their very best to reach a settlement without going to Court. If this is not possible, they can go to Court, as a last resort, after giving 21 days’ notice. However the sting in the tail is that they would both have to instruct new lawyers. This often incentivises parties to compromise rather than start all over again with new lawyers.

Family mediation is where both parties try to reach agreement with an independent third party, who can give them legal information to try and reach their own agreement.  The mediator cannot give legal advice, so it is wise for people undertaking mediation to also appoint a lawyer.  If an agreement is reached the lawyer can then be asked to make the agreement legally binding.

If you do not feel comfortable with the idea of meeting your spouse, a further option is to employ a lawyer to advise you and communicate on your behalf. If this is your preference it is best to choose a lawyer whom you can trust to have constructive and effective communication with your spouse, or their lawyer, as that is far more likely to result in a settlement being achieved, rather than using an aggressive, confrontational lawyer.

Going to Court to resolve the financial side of your divorce should be the last resort. Unless you negotiate a settlement in the initial stages, the final decision is made by a stranger who knows very little about you and your family. They often do not take into account points that are very important to you. You lose control and the Judge declares what assets you are going to get, whether you want them or not. The process is the most expensive and slowest of all of the options.

The family team at Hay & Kilner have many years of experience dealing with divorce and separation. Nicola Matthews is former Chair of the North East branch of Resolution, an association of family lawyers who adopt a firm but non-confrontational approach to family law cases.  Come and speak to us about how you would like us to handle your situation.

Nicola Matthews is a Law Society Family Law Panel Member and qualified Collaborative Lawyer.  For further information contact Nicola on 0191 232 8345 or email nicola.matthews@hay-kilner.co.uk