Separating couples should ‘try almost anything’ before turning to court
This advice comes from Sir Andrew McFarlane, President of the Family Division of the High Court. The eminent judge believes there has ‘got to be a better way’ to resolve disputes. But don’t all divorces go through courts? And why is divorcing in court such a bad thing?
All divorce petitions are submitted to a court, but the exercise of reviewing the petition and granting the divorce is done on paper by a judge. In most cases, this means there is no need for anyone to attend court. In fact, fewer than 10% of couples actually go to court. It is only necessary if any part of the divorce case is contested – such as legal costs, financial assets or arrangements for children – and even then, there are many other options to consider (as outlined at the end of this article).
The existence of courts is still necessary, due to the circumstances of a small number of couples. However, even leading divorce lawyers admit that most of the couples who bring disputes to family courts do not need to, and do not benefit. The adversarial court structure sees couples acting against one another, with each side presenting evidence to support their favoured conclusion – and this, almost inevitably, leads to conflict.
According to Kids Come First, a support and training organisation for separated parents, ‘The overwhelming majority… describe their experience of the court system as a negative one.’
Here we outline the emotional and practical reasons for avoiding family court when you divorce.
Going to court is expensive
Engaging a lawyer to prepare for court and represent your interests in multiple hearings costs a lot of money. One recent divorcee commented, ‘Whatever you think it might cost – triple it.’
As well as court fees, expert fees and solicitors’ fees, costs only increase the longer the divorce takes to resolve. Even an uncontested divorce takes 26 weeks to complete – and court hearings add significantly to that timeline.
Divorce through the courts is a lengthy process
At the end of 2022, 80,000 divorces were waiting to get a date in court. Then, once in court, these divorces on average take nearly a year to progress through the basic court stages.
For financial disagreements, there can be three court hearings: the First Directions Appointment (FDA), looking at what information is needed; the Financial Dispute Resolution (FDR), a negotiation hearing where settlements are often made; and the Final Hearing, where the judge makes a ruling.
If arrangements for children are contested, most cases require two or three hearings: the First Hearing Dispute Resolution Appointment (FHDRA), which includes safeguarding checks and establishing the dispute; the Dispute Resolution Appointment (DRA), which involves narrowing issues and advising on resolution; and in some cases there is a Final Hearing, where the judge delivers a decision.
Resolving matters in court is high risk
As outlined above, if a solution cannot be mutually agreed during the court hearings, the judge will make a final ruling which is imposed on both sides. The judge is not bound by either ex-partner’s proposals and has the authority to decide what is in your or your children’s best interests. By taking a divorce case to the Final Hearing, you are effectively handing over control of both your future and your family’s to the judge. This can often feel like a lose-lose outcome instead of the desired win-win.
Court hearings can escalate conflict and hinder good decision-making
Even if you both have collaborative lawyers, the adversarial process can inflame an already emotional situation and curb constructive communication. The more conflict that occurs, the more damage is done to long-term relationships and the negative impact on children can be significant.
Our judgement can also become clouded. As Kate Daly, a specialist in non-conflict divorce explains: ‘At times when we are emotionally processing (and close to being overwhelmed), we find it harder to make good decisions.’
So… if court is to be avoided but an amicable ‘kitchen table’ resolution feels out of reach, what other options are there to resolve disputed issues?
- Solicitor-led negotiation – each of you instructs a solicitor to advise and negotiate on their behalf out of court. This is usually done through correspondence.
- Mediation – an impartial, trained, third-party mediator works with a couple, usually face to face, to explore solutions. It’s worth looking for an accredited family mediator who will have specialist mediation training. The Family Mediation Council has a good database.
- Collaboration – this is something of a hybrid of mediation and solicitor-led negotiation. Each ex-partner appoints specially trained collaborative lawyers and everyone commits to resolve issues without going to court. Your collaborative team might also include an independent financial adviser (IFA), family consultant, child specialist or accountant. You and your lawyers will meet face to face with the other party to work things through.
- Arbitration – individuals appoint a qualified third party to adjudicate and make a binding decision but in a more flexible and less formal setting than a courtroom. Many, but not all, arbitrators are lawyers or retired judges. The Institute of Family Law Arbitrators (IFLA) is a good place to start looking for an arbitrator.
- Private Hearings – the ex-partners effectively pay to have their own FDR outside the court system which can give them more time to work through issues. Private FDRs are successful in getting to settlement in 80–90% of cases. This then removes the need for a final court hearing.
Other resources for separating couples include targeted support groups such as Families Need Fathers (FNF) and OnlyMums as well as separation counsellors. The Separated Parents Information Programme (SPIP) has been helpful to many parents.
In summary, whatever your reason for going to court, and regardless of the strength of your argument, it is expensive and stressful, and the outcome will always be uncertain. To quote from a straight-talking video created by the Australian Family Courts, ‘Where it’s safe to do so, you can separate smarter…’
