The first weeks of January are fabled to be the busiest time of the year for family lawyers with new enquiries flooding in. The reality is that divorce is never a step that is taken lightly and just because you may have had an awful Christmas with your spouse doesn’t put getting divorced to the top of your list of New Year resolutions.
January doesn’t tend to be busier than any other month, but some people will have consulted a lawyer towards the end of the previous year with the intention of “pressing the divorce button” after the Christmas holidays, especially if they have young children. Others may see the start of the year as the impetus they finally need to get out of what they consider to be a failed marriage.
Lawyers understand that divorce is a major step and likely to be traumatic. While some divorces are hard fought, they don’t have to be and a good specialist family lawyer can help limit the emotional pain with a number of tools available to help avoid acrimony. Counselling can help explore if the marriage can be saved, but if it can’t then this can help people come to terms with the end of their marriage.
The divorce itself has to be based on fault, either “unreasonable behaviour” or adultery, unless people are willing to wait until they have been separated for two or five years. It is good practice to try to agree the terms of the behaviour so that anything that is particularly contentious can be removed or toned down. When a petition is based on adultery the third party is usually not named. In most cases the divorce itself is a form filling exercise.
Resolving financial issues is more difficult because there is no set formula to apply and whatever advice you may receive from well-intentioned family and friends, they will not know how the law is likely to be applied. Very few cases go all the way to a final hearing and many will settle without a court application being issued.
The majority still settle by negotiation between family lawyers who will know the parameters of the case. There are also alternative dispute resolution methods available such as mediation and arbitration to help reach a resolution. When cases are more difficult then an application has to be made to the court. However, even then the court process includes a dispute resolution procedure with assistance from a judge to help both sides find a resolution. The cases that tend to go all the way to a final hearing are ones where one side has an unrealistic expectation of the outcome or there is a suspicion that money is being hidden.
Courts should always be viewed as a last resort for issues surrounding children. Mediation has a very high success rate in disputes involving children, with a good mediator helping both parents see the other’s point of view and helping them find a solution.
Legal advice at an early stage will help manage the entire divorce process and should give a realistic expectation as to the potential outcome.
Philip Rutter is a Partner in our Family team.
If you need expert advice on divorce matters, or family relationship issues more widely, please contact a member of our family team on firstname.lastname@example.org or call 020 7631 4141.
This article was originally written for a New Year, New Start 2018 supplement for The Mail on Sunday published on 7th January 2018.