Too many divorces end up in court

The law on getting a divorce has recently changed. The idea behind the significant change in procedure is to take some of the sting and acrimony out of the process for the parties who are going their separate ways. To get a divorce in England or Wales all of the following must apply:

  • the parties have been married for over a year
  • the relationship has permanently broken down and
  • the marriage is legally recognised in the UK (which includes same sex marriages).

The divorcing couple can decide whether they want to make a joint application or apply on their own. According to the government website, it normally takes at least 6 months to get a divorce.

However, the new divorce procedure only deals with bringing the marriage to an end. Matters can become more complex and acrimonious when dealing with the finances and children. The head of the family courts in England and Wales has recently commented on the issue and estimates that around one fifth of marriage breakups wrongly end up in court with one party suing the other. He pointed to evidence which demonstrates that children can be harmed by what is going on in their family and felt that court proceedings to resolve issues relating to children were often inappropriate. He said that:

"My feeling is that about 20% of the families who come to court to have a dispute about their children resolved, would be better served by at least, first of all trying to sort it out themselves in other ways."

One way to resolve a dispute when a couple divorce or separate is to enter into mediation. This is a non-adversarial process where a trained family mediator can help a couple reach agreement for themselves regarding issues such as finances or arrangements for children.

Family mediation is not a compulsory part of the divorce process, and the mediator is not permitted to give legal advice. Either party can choose to have legal representation from a family lawyer who can advise them as to their position and what might be a fair outcome. The family lawyer will rarely attend the mediation sessions but if an agreement is reached via the mediation process, the lawyer for each party can formalise the agreement by sending it to court which has the effect of making the agreement legally binding. 

The vast majority of divorcing couples would not choose to bring harm upon their children. Employing an appropriate family lawyer for legal advice and combining this with family mediation could result in a much better outcome for all involved, especially the children. As the head of the family court has said:

"Research shows consistently that if you're the child of parents who are at odds with each other, whether or not they are coming to court, that is unhealthy. It does your head in to put it in straightforward terms."

To discuss this or any other family matter, contact us.

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