Divorce carries the reputation of being one of life's most
traumatic experiences. The emotional impact of a marriage breakdown
can be exacerbated by the fear and uncertainty associated with the
legal aspect of divorce. There are, however, many misconceptions
about divorce proceedings which can be easily dispelled.
How much will it cost?
The cost of divorce proceedings varies dramatically from one
case to another. Where spouses are motivated to achieve a swift and
fair division, the costs incurred will be limited.
Should I engage a lawyer?
Before embarking upon what is doubtless the biggest negotiation
of your life, it is absolutely prudent to arm yourself with all
relevant information concerning your legal rights and the
principles to be applied. A common misconception is that the
appropriate division of assets is an equal split. This is not
necessarily the case.
The first step is to establish the full extent of the
"matrimonial pot". It is not unusual for one spouse to
attempt to avoid the disclosure process with the aim of
undervaluing assets or even excluding certain assets from
negotiations. The impact of such an approach is that overall
settlement is likely to be unfavourable to the other spouse. Thus,
the assistance of a lawyer in the disclosure process is often key
to ensuring that the full "matrimonial pot" is
established before settlement options are even considered.
A fair division will take proper account of the relevant
factors, such as the age of the parties, the length of marriage,
the needs of the parties and any children, the assets, income and
earning capacity of both spouses. Fairness rather than equality is
the goal. Applying these factors is not always straightforward and
often dictates that an unequal split of the assets is the
Obtaining legal advice as to what would constitute a fair
settlement may therefore be a sound investment before trying to
agree matters with your spouse.
Will I have to go to Court?
The vast majority of cases settle. However, a fully contested
hearing may not be avoidable in some cases. Concluding a case in
such an adversarial environment can be deeply unpleasant, stressful
and expensive. We do all we can to assist our clients to reach a
consensual resolution, saving time and money and ensuring control
over the outcome.
What other methods of achieving settlement are avialable?
Once the full extent of the "matrimonial pot" has been
established, trading offers in writing and/or negotiating face to
face are usually the starting point when commencing
If those methods are fruitless or there is a particular issue
(or issues) acting as a bar to settlement, other options are
available, for example;
(i) Mediation – a fully
qualified Mediator attends a meeting with lawyers and clients
present. The comfort of legal advice complimented by the assistance
of an impartial third party encourages clients to reach
(ii) Private FDR – a highly
experienced Barrister with judicial experience is invited to hear
legal submissions from each party's respective lawyer. The FDR
Judge provides a judicial steer, which, whilst not binding, assists
clients to negotiate a tailor-made solution with an understanding
of what a Court might be likely to order if the case went to a
The success rate is impressive and the costs (both emotional and
financial) are a fraction of those incurred if seeking final
determination from the Court.
A divorce lawyer's role is to navigate their client through
a highly emotional and difficult time by offering legal advice and
ensuring that the client is aware of all options throughout. It is
the client who dictates the tone, pace and direction of the
Notwithstanding the most significant misconception of all, it is
possible to get divorced without wasting money and to reach an
agreement swiftly in respect of both the finances and/or children.
A consensual resolution increases the prospect of a post-divorce
relationship which is of significant importance in cases where
children are involved.
Article first published in Gallery Magazine in September
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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