The costs of divorce are notoriously high, and not only on a financial level. The emotional cost of divorce varies depending on the circumstances of each case, but it is acknowledged that the majority of divorces will impact upon the parties and any children to the marriage quite highly.
In this blog I will only consider the financial impact of divorce. The costs involved in a divorce stem from various sources – the Court fees for the procedure itself, and solicitor fees for resolving any financial matters between the parties. The common factor that exacerbates the level of cost is the level of disagreement – if parties are not willing to negotiate and be reasonable then the costs are likely to be much higher. Unfortunately this is a common problem in many divorces as either one or both parties is annoyed or upset about the breakdown of the relationship and this hinders their ability to act reasonably.
The issue of costs in relation to divorce is even more relevant in light of the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently before the House of Lords. The changes proposed include significant reductions to the availability of Legal Aid in family and children matters, which will increase the financial burden on the parties.
At the end of 2011, Resolution carried out a survey of its members who undertake Legal Aid work, to ascertain the predicated impact of the Legal Aid, Sentencing and Punishment of Offenders Bill. 87% of the members surveyed say that the Bill would mean that less than 25% of people they currently help would still qualify for Legal Aid. How are the other 75% going to afford legal representation? This is a question to which no-one has an answer.
One approach which is useful to reduce the costs of divorce is if the parties can agree to sign a pre-nuptial agreement, a post-nuptial agreement, a separation agreement or a parenting agreement before the breakdown of the relationship. Utilising some form of agreement between the parties will assist them should the relationship break down and will assist the Court in deciding any matters between the parties. Whilst in the UK, pre-nuptial agreements are not yet considered binding, case law has indicated that the courts may hold the parties to the terms of the agreement, if the terms are fair, and if both parties entered into the agreement freely and with full knowledge of the circumstances. More information on the benefits of pre-nuptial agreement can be found in my blog, Case Law Developments on Pre-nuptial Agreements.
The vastly confusing procedure involved in the family justice system means that the majority of people require specialist legal advice when considering divorce. Hopefully this position will improve in the future, but at this stage it is recommended that the assistance of a solicitor is used to guide you through the process and to facilitate any negotiations that are needed. The Family Justice Review has made proposals to improve the family justice system, and for further discussions on these proposals, see the blog ‘Is change on the way?’
Whilst the divorce procedure itself requires the Court to be involved, there is no such requirement for the Courts to be involved in decisions regarding the children or the finances. However, if parties are unable to agree, the Court can be involved. As I have already highlighted, the current family justice system through the Courts is not the most satisfactory and various commentators have observed that recourse to the Court should be a last resort. To this end, many solicitors recommend the use of mediation or collaborative law to resolve matters. Collaborative law is a process by which the courts are formally excluded, and the parties agree that neither of them will apply to the Court and will instead resolve matters through a series of structured meetings. I am trained and would be happy to discuss this option with you in more detail if this is something that interests you.
We also have strong links with counsellors and divorce support coaches should you require additional support when negotiating the emotional minefield of divorce, and we would be happy to refer you to these if needed.
Communication between the parties, and cooperation, are key factors that will help to keep costs to a minimum. I appreciate that it is not always possible for parties to enter into an agreement when there are heightened emotional states involved, but this is by far the most simple and beneficial outcome. Whilst many parties do not like to consider the breakdown of their marriage before this has happened, the idea of a pre-nuptial or post-nuptial agreement can help to put parties’ minds at rest in the event of the unfortunate breakdown of their marriage. It is much easier to agree what would happen in the event of the relationship breakdown before this has happened. Some form of agreement can place the parties on a level footing, with a greater understanding of the others position.
You can contact Justine Osmotherley from our Family team on 0113 336 3323 or by email at firstname.lastname@example.org
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.