While divorce is often associated with conflict and acrimony, it need not always be that way. Elizabeth Gallagher discusses the steps that should be taken to ensure the process is as constructive as possible.
Divorce is, by its very nature, a distressing matter, and must surely be among the most stressful events in life. Usually it is the process of sorting out the family finances that causes the most difficulties.
However, if the process is handled sensitively and constructively, with all possible attempts made to minimise conflict and maximise positive communication, the stress of going through a divorce or separation can be greatly lessened.
When a couple separate, usually they are in different “places”. One keen to move on (‘the leaver’), and the other experiencing difficulty coming to terms with the end of the relationship, (‘the leavee’).
Getting ready to go through the process of divorce and separation can be likened to an athlete training for an important race. The athlete will not be able to participate without the right ‘kit’ and will not be able to perform to the best of his or her ability without undertaking significant training and being at optimum ‘fitness’.
Appointing a sensible pragmatic lawyer is crucial. In addition to guiding and advising on the legal aspects of the divorce, lawyers should have a good network of other professional contacts, that they can call upon to assist at appropriate stages in the process.
A lawyer who simply bulldozes ahead with the legal issues, without giving consideration to the non-legal issues impacting, in particular, on the leavee, will create an acrimonious situation, often giving the leavee no choice but to instruct a lawyer to fight his or her corner.
The leavee may not be in the right frame of mind to look at the bigger picture, will feel insecure emotionally and financially, and may not be able to process information to make informed decisions. This can make the process become protracted, often resulting in litigation which in turn will increase costs and be stressful.
Often it can save time and be more cost effective if non-legal issues that can give rise to the aforementioned scenario, can be highlighted at the outset, and another professional brought into the process to assist.
Such professionals could include Family Consultants, who are professionals who come from a variety of backgrounds. They understand couple dynamics and can help ensure that any non-legal issues that might impair the process are dealt with and communicated to the legal team. This then helps both parties to get to optimum ‘fitness’ to embark on the process of divorce.
In addition to getting to optimum ‘fitness’ to deal with the legal issues, the appropriate ‘kit’ needs to be assembled before a financial decision can be made. This involves collating and exchanging financial information, so a picture is built up as to what is in the matrimonial pot.
It is vital to identify what is important and how best to achieve this at an early stage, as this can save time and money and will reduce stress and acrimony.
There is no point in a solicitor spending an inordinate amount of time wading through accounts they don’t understand, or looking at complicated documents about pensions, as they are not trained to do this and it will waste time and expense.
Lawyers can advise on legal issues but issues that require expert financial advice, should be referred to an appropriate expert, on a joint basis at an early stage.
Information can be provided by experts such as accountants, actuaries or independent financial advisors. This will enable transparent and informed discussions to take place with the expert and the parties at an early stage.
Once all the ‘kit’ has been assembled, the parties have to find a way of dividing the assets in a way that they think is reasonably fair, and that they can live with.
Asking a Court to make this decision is often not the best option, although if one party refuses to engage in the process or fails to disclose information, there may be no other option but to pursue a court application.
The Court process is slow and is a lottery, as different Judges will interpret the law in different ways. This means that the experience of going to Court is usually expensive and stressful.
A sensible, pragmatic lawyer will advise on all the options to resolve issues and steer a client towards the process that best suits that client and their family. This may be through the process of mediation, the collaborative process, instructing a barrister on a joint basis to give an early neutral evaluation, or referring the matter to arbitration whether this is to resolve all issues, or just a discrete issue.
Resolving financial matters when parties divorce, is not about blame or punishment for ‘bad’ behaviour. It is a problem-solving exercise to allow a couple to move forward with their lives.
With the right advice and assistance, there still may be no such a thing as a “good divorce”, but hopefully the whole experience will not be such a stressful experience, and will enable a couple, particularly with children, to be able to work together more constructively for the benefit of their children in the future.
- Elizabeth Gallagher is a consultant in Sintons’ award-winning family team. To speak to Elizabeth, please contact her on elizabeth.gallagher@sintons.co.uk or 0191 226 7813.
