29 June 2018

Separation and divorce: Avoiding a court battle


The majority of Withers clients would view the need to conduct any family disputes (divorce, separation, children and financial settlements) confidentially (away from public glare), discretely and collaboratively.

Going to court to resolve a family matter can be one of the most stressful events in life. Litigation is frequently necessary, but alternative non-court options are becoming increasingly attractive to successful individuals. Why? Because the process is tailor-made and completely confidential, the outcome is enforceable and swift (usually mirrored in a court order with anonymity guaranteed) and often, the costs are significantly less than 'having your day in court'.

Withers' clients can benefit from various dispute resolution options. Often in family disputes the clients and lawyers meet together to have negotiations resulting in settlement without the need to go to court. In addition clients can be referred to mediation; collaborative law; paying for a private financial dispute resolution hearing before a nominated judge; or for family arbitration.

Family arbitration is the relatively 'new kid on the block'. There are two schemes within family arbitration: financial and children. Arbitration provides a private and confidential forum which allows the parties in dispute to focus on the issues between them, setting the agenda for the arbitration and allowing them to set the pace of the process, rather than being at the mercy of unreliable and protracted court timescales. There is a streamlined procedure for the arbitral award to be converted (again out of the public eye) into an enforceable court order (where necessary). It is speedy, it is confidential and it is effective.

So what disputes can be resolved within family arbitration? Answer: Almost all:

  • financial proceedings following divorce and separation (spousal maintenance, property transfers, capital orders, trust issues, pension sharing orders etc);
  • children issues to determine with whom children should live following divorce and separation, or which school they should attend etc);
  • financial claims for children of unmarried parents, where claims are limited to the needs of the child (maintenance, education costs, trusts, property), with some provision for a carer's allowance;
  • discrete issues – in the manner of a preliminary issues hearing , arbitration can be used during the court process to resolve (commercially or otherwise) sensitive issues, which can then be put to one side at any final court hearing, for example disputes relating to art work, eg disputes concerning chattels or dealing with the mechanics of any settlement (liquidation of assets);
  • variation claims;
  • Trusts of Land disputes between cohabitees.

The award is final and binding and the consequent court order ratifying its terms is obtained within an accelerated process at court with no press coverage allowed.

So, next time the opportunity arises, remember that family law is not all about winning landmark cases at court (which, of course, we do at Withers). It's about helping the successful client to choose the optimal route to achieve the best outcome for themselves and for their family.

It is definitely worth considering out of court options in family law cases and arbitration is gaining huge popularity. Talk to a member of the family team about the best solution to fit your situation.

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Category: Blog