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Don’t be afraid of using the courts

As Resolution members we subscribe to the Code of Practice. This means we are required to:

  • Conduct matters in a constructive and non-confrontational way
  • Avoid use of inflammatory language both written and spoken
  • Retain professional objectivity and respect for everyone involved
  • Take into account the long term consequences of actions and communications as well as the short term implications
  • Encourage clients to put the best interests of the children first
  • Emphasise to clients the importance of being open and honest in all dealings
  • Make clients aware of the benefits of behaving in a civilised way
  • Keep financial and children issues separate
  • Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional
  • Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings, and
  • abide by the Resolution Guides to Good Practice in specific areas of our dealings.

These are all lofty ambitions and we are proud to say we do our very best to put them into practice, day in day out. As regular readers will know, at CFLP we are big fans of appropriate dispute resolution on divorce, and we write a lot about mediation, collaborative law, arbitration and other ways of keeping things out of court whenever it is possible to do so. That said, the bulk of our work remains court work, or at least negotiation in the shadow of likely court proceedings. Why is this?

The main reason is that involving the court inevitably means that there will be measurable progress towards a final outcome within a certain timescale, and on the basis of the relevant information. In that way, court is the ultimate default position for those seeking to make arrangements for a fair division of finances or property after divorce, or indeed to settle arrangements for children. (This blog focuses on financial matters.)

Family mediation is an excellent process and one to which we are committed at CFLP. Where former partners can work together in a businesslike manner, it can be quicker, cheaper and less stressful than court proceedings for making lasting arrangements that everyone can tolerate. Unfortunately it doesn’t work for everyone. A couple of sessions in, sometimes it can become evident that one person can be dragging their feet; there may be a refusal to disclose full financial details, an increasing perception of bad faith on one side or a growing lack of trust. A good mediator will pick this up and challenge it, but the fact remains that mediation is an entirely voluntary process and one to which both people need to be fully committed in order for it to work as a dispute resolution mechanism.

It’s important to understand that in family matters, only the court can compel financial disclosure, and only the court can impose a decision. Sometimes, turning to the court is the only way to make real progress.

The lack of legal aid for family dispute resolution other than through mediation means that some people have got the idea that it’s mediation or nothing. Our message today is that there is no need to be scared of the court: if you are not making the necessary progress by negotiating, mediating or by other means, then a court application will get things moving forward.  That is what it is there for –to get you to a resolution.

Back to the Resolution Code: moving towards court proceedings does not have to mean all-out warfare with your former spouse. Indeed, this is rare, and those of us who are Resolution members do our utmost to keep the temperature low. It is entirely possible to conduct court proceedings in a measured, constructive and non-combative manner, and that is what we try to do at all times.

In financial proceedings on divorce, the court will order that both of you complete a full financial disclosure form – Form E – upon which each of you will be able to ask questions of the other. The Form E carries a statement of truth to the court that you must sign, meaning a deliberate misrepresentation in the form may be a contempt of court. The court will ask you to set out what the issues are in your case, and will discuss these and any questions about your former partner’s disclosure you have at a court hearing at a designated date and time, which you must both attend. There is no leeway, no questions of convenience. If the information is not supplied by the given deadlines, the judge will want to know why, and there may be implications.

There are a lot of problems with the family justice system, which are well-documented. That said, the system still works. The judges do their best to promote settlement, and if this is not possible then eventually the court will make an order about what is to happen. Eventually, one way or another, there will be an answer.

It’s important to understand that making an application to court does not necessarily mean that the court will make the decision in the end. In the overwhelming majority of cases that we see – 95% perhaps – the people involved manage to come to a negotiated agreement themselves rather than needing a judge to impose an arrangement. In any event, court proceedings can provide a helpful framework and can concentrate the mind. They do not mean that negotiation, or even mediation, has to stop – quite the opposite, filing proceedings can give the settlement process new life.

If you’re thinking about making an application to the court, we’ve written before about what happens at different stages of the court procedure (Form E; the First Appointment; the FDR; the Final Hearing http://www.cflp.co.uk/the-final-hearing-countdown/ ). You can find our factsheets about the process and principles involved here . If you’d like to make an appointment for a consultation with Gail, Sue, Adam, Simon or Tricia, please give any of us a call on 01223 443333.

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