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Should I take divorce proceedings to court?

Tags: court
Content Types: Legal
Categories: Separating

You've decided to split up but are unsure whether to let a Judge decide or whether to try and talk things through with a lawyer or mediator.  So which option might be best for you?  TheParentConnection asked Adele Wilkinson of law firm Andrew Jackson to offer her words of advice when making this tough decision:

At the outset of a dispute between a separated couple, it might be useful to have an initial meeting with a lawyer or mediator - not to take legal advice, but to find out about the pathways available to get from A to B. Parties can then make an informed decision about which way would be best for them and their family. Here are some pointers which might help:

When going to Court might be best

  • When there is a history of domestic violence or emotional abuse
  • When there are child protection issues
  • If there is a large power imbalance between the parties which would make dispute resolution very difficult
  • If one party refuses to engage in dispute resolution away from the court or can't be found

When staying away from Court might be best

  • When parties are amicable and want to maintain a good relationship
  • When there are children involved
  • When parties aren't particularly amicable but want to try and reach a settlement away from the court and if there are children, a desire to try and improve their parenting relationship
  • When money is tight - legal aid is still available for mediation and from November 2014 legal aid for one person will pay for the first mediation session for everyone

Advantages of going to Court

  • There will be a definite outcome at the end of the case; the Judge will make a decision if the parties can't agree
  • The court has the power to order people to produce documents and carry out actions

Disadvantages of going to Court

  • Dispute resolution is likely to be much quicker, cheaper and more informal
  • Parties make their own decisions and have more control over the process
  • Dispute Resolution helps to preserve/improve parenting relationships which in turn produces better outcomes for children
  • Legal aid is still available for mediation

 

If you're still unsure which route to take, then the following examples may help you:

 

Dispute Resolution

Peter and Helen were together for 10 years and have two children - Ellie aged 5 and Tom aged 8. Helen and Peter separated last year after Helen found out that Peter was seeing another woman. The children stayed with Helen, whilst Peter left the family home and is renting a house now. The children used to spend time with Peter at weekends but at Christmas time there was a big falling out over money and there hasn't been any contact between Peter and the children since then. Peter and Helen aren't able to talk about anything without arguing; they both blame the other for the current situation. Tom has been in trouble at school for fighting with other children and Ellie has been very clingy and tearful. Helen worries about what will happen to the house, which she and Peter own jointly. Potentially this is a case which might benefit from dispute resolution rather than going to the court - Peter and Helen could attend mediation to try and improve their parenting relationship.  They could agree together some arrangements for the children to spend time with Peter which would be safe and comfortable for the children and acceptable to Helen and Peter and they could make a joint decision about what will happen to the family home.

 

Letting a Judge decide

Jon and Sally separated a month ago after a violent incident - the police were involved and a referral has been made to Social Services. Sally and Jon were married for five years and during that time the police were called out to their house to deal with domestic disputes about ten times altogether. Sally is applying to the court for an injunction order to stop Jon from being violent towards her and harassing her. Sally says she is scared of Jon and worries about their child spending time with him. Jon suffers from anxiety and depression and has made threats to commit suicide in the past. Sally and Jon's daughter Molly (aged 3) lives with Sally and doesn't spend any time with Jon at the moment. There are financial issues to resolve too: Jon has been asked to provide details of his assets but has refused to engage with Sally's solicitors. It is unlikely that this case would be suitable for dispute resolution. There has been a long history of domestic violence and there are mental health issues. In addition to Sally's injunction application it may be necessary for Jon to make an application to the court in respect of his relationship with Molly; Sally could apply to the court to deal with the financial aspects of their separation.  The Court has the power to order Jon to supply his financial details and can make decisions about the family assets.

For help in making difficult decisions when relationship breakdown happens,  it might be helpful to talk to a Family Lawyer who is a member of Resolution or a Mediator who is accredited by the Family Mediation Council.

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