With divorce rates on the rise again, most likely due to the financial pressures that most of us now live under, more and more people are not only facing the prospect of being divorced but the convoluted machinations of the divorce process itself. Often the two messiest and most contentious issues that couples need to resolve in any divorce case are the custody of the children and the division of finances. This article looks more closely at the second of these but of course all issues are intertwined.
To understand how financial disputes can be resolved it is useful to begin by looking at the broader divorce procedures. Despite the fact that divorce is far more socially acceptable these days, the judicial process still requires that one party in a marriage is deemed ‘at fault’ for the breakdown in the marriage and so to instigate a divorce an individual must complete a petition to the courts on the basis that their partner has committed adultery or unreasonable behaviour, or has deserted them for two years. Other grounds for divorce include a separation of over two years where both parties agree to it or five years of living apart. This petition is not only filed to the courts but forwarded to the other partner to sign and if all parties are in agreement, and if there are sufficient grounds for divorce, a judge will first grant a decree nisi . The decree nisi allows a 6 week window for objections to be raised, after which the prospective divorcees can apply for a decree absolute which confirms the divorce.
The granting of a divorce can be contested by either party involved but it is unusual for it to be overturned and therefore the majority of disputes that occur during the process are likely to be a result of conflict surrounding the distribution of finances and the arrangements and responsibilities towards children (often referred to colloquially as ‘access’). Where there are very few reasons for conflict, dispute or disagreement - in other words, there are no financial assets to split, there are no children involved or these issues have been resolved and agreed in advance of the case reaching court - then the case can be resolved as a summary divorce.
Where there are financial and custodial disputes to be resolved there are a number of different approaches that can be taken to reach (preferably) an agreement or a (at least) a decision on the issues. These approaches include legal negotiations, court rulings, family mediation and the new tactic of collaboration. Which route a couple takes needs to be decided early on in the proceedings so it is important to fully consider all of them at the outset.
Negotiations/Court Ruling
The traditional path that most people still take however is to pursue the case in court and then negotiate through their legal teams whilst the court proceedings are ongoing in an attempt to find a resolution which can be presented to the court, rather than relying on the judge to reach a conclusion. Each party’s lawyers correspond with each other’s on their behalf, representing their best interests, so that the two parties do not have to physically meet. If an agreement cannot be reached, the family court will make a discretionary decision based upon the evidence that they hear in regard to the financial aspects of each party and the marriage.
The framework for the judicial process involves:
- an initial application to the courts and subsequent provision of all relevant financial details and documents
- a First Directions Appointment (FDA) 12 weeks later to define the disputed issues and what needs to be done to resolve them
- a Financial Dispute Resolution appointment (FDR) where all parties attend to negotiate a resolution with suggestions from the judge
- a Final Hearing where a new judge will rule on the case if no agreements have been reached
An agreement through negotiation can be reached at or between any of these stages and presented to the court as a ‘consent order’.
Where agreements really are not feasible the full court process may be the only option but even when agreements can be presented to court the financial burden of communicated and operating through lawyers can be severe.
© Stuart Mitchell 2012
If you want to find out more about the most effective ways of resolving financial disputes during divorce proceedings then visit Family Law Solicitors London.
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