Separating amicably: Easing the financial and emotional cost of divorce
The end of a union, especially one where there are children, can be a deeply distressing, painful and uncertain time.
There are decisions to be made about the children, property and the finances generally – and all at a time when everyone is emotional and finding taking the simplest decisions impossible.
Harmonious… separated but still intact… respect… caring for one another….focused on holistic solutions…. These are not sentiments most people associate with the process after family breakdown.
However, depending on the pathway chosen and the attitude adopted, these are all the possible outcomes for families upon permanent separation.
These days the family unit can be more complex and can often span multiple countries. It is unsurprising that separations are becoming equally complicated.
At the same time, there has been greater focus on the emotional impact of divorce, not just on the couple but on any children they might have and the wider family.
Research from the Institute of Education at University College London earlier this year revealed that children between the ages of seven and fourteen caught in their parents’ divorce can exhibit a 16% rise in emotional problems such as anxiety and depressive symptoms, and an 8% increase in conduct disorders.
The court process often comes at a high financial and emotional price. Lack of court time, long delays, the endless need to gather evidence for an adversarial system, increases the temperature and level of conflict.
As the impact on all members of the family is better understood, there is a growing demand for reduced stress and mindful separation.
Couples whose focus is to achieve harmony as soon as possible, and where domestic abuse is not an issue, should consider mediation.
Mediation is appropriate for any type of family law dispute. Parties usually attend without lawyers and whilst it is suitable for most people, the process starts with individual assessments to ensure the safety of participants, that they each have capacity and to prepare them for the process.
A specialist family mediator facilitates dynamic and interactive discussions between the couple and maintains a safe space in which the couple can navigate conversations on tricky topics from arrangements for the children’s care to the division of their assets.
Over a series of meetings, usually no more than four or five, the couple will work together to come up with a proposals that both are happy with. These proposals are not legally binding until a consent order is put before the court.
Mediation is rightly praised for being speedy, cost effective, flexible and fostering good relations between separating couples.
Avoiding the animosity that can arise during lengthy court proceedings can help couples focus on the fact that they will always be each other’s family which reduces unnecessary conflict.
Arbitration is perfect for couples who cannot reach a joint decision but want to avoid the traditional courtroom.
It requires parties to volunteer and agree to submit their dispute to an arbitrator for a final and binding decision which is enshrined in an arbitral award.
Arbitration is suitable for all financial disputes including those arising upon divorce, dissolution of a civil partnership, at the end of cohabitation and provision after death.
Its use is rather more limited when it comes to children as only certain specified disputes fall within the current scheme.
The arbitration process is overseen by an experienced, independent and impartial arbitrator, who is chosen by the couple, depending on the nature of the case and the skills required.
This is a unique benefit because if, for example, the family have complex assets they can choose a legal specialist in that area – the truth is that the court system will not necessarily assign the case to a family judge who has that sort of in-depth knowledge.
Unlike mediation, the arbitrator will come to a legally binding decision having considered all the evidence in the case. Although the cost of arbitration can seem quite high at the beginning, avoiding the legal costs of a drawn out case going through the courts saves a significant amount of money in the long run.
Mediation and arbitration and the prospect of stepping away from a relationship without the extra stress of the courtroom is appealing to many – and for good reason.
The confrontational style of the traditional courtroom serves in many cases to exacerbate tensions and conflict in the family at time when everyone already feels vulnerable and hurt.
Whilst there are no winners at the end of a relationship, and it is accepted that the process will never be truly ‘stress-free’, there are clear benefits of choosing mediation and arbitration because they are both dispute resolution options which are credible and effective alternatives to court.