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In the absence of adultery or long periods of separation, those who want to end their marriage need to detail allegations of unreasonable behaviour on the part of their spouse. This puts an intention to divorce amicably under considerable strain.
My clients often ask me, "Why can't we divorce by mutual agreement? Our American cousins are able to, just by citing irreconcilable differences." The answer is that the current state of our law, unchanged since the 1970s, simply doesn't allow it; even though marriages rarely end due to the fault of just one party. Because of this, both parties and the solicitors assisting with the divorce proceedings need to handle the divorce carefully.
The 'pre-action protocol' (which outlines the expected conduct and steps a court expects couples to take) requires a draft of the reasons for divorce to be shared amongst all parties, before it is issued to the court. This is done in an attempt to gain mutual agreement of the allegations, and is very difficult. I have found that some of my clients want to avoid going down this route. It (potentially) increases costs and, unfortunately, some clients have the perception that not all solicitors will encourage peaceful engagement. However, peaceful engagement is always preferred, where possible, by Anthony Collins Solicitors.
In a recent survey of family lawyers, carried out by Resolution, over 90% agreed that divorce law needs to be modernised to allow for no-fault divorce. As well as no-fault divorce being a better option for separating couples, family solicitors have also predicted that the change in legislation would see a rise in the:
- use of family mediation;
- amount of court time spent dealing with children; and
- amount of court time spent dealing with financial issues relating to divorce.
Another challenge is the discretionary nature of the judge's jurisdiction in financial proceedings. Despite legislation and case law for guidance, throwing yourself on the mercy of a third party to decide your financial future brings inherent uncertainty. You can never know exactly what the judge will do; good lawyers can only advise so far. It is better to reach an agreement with your spouse or partner over the kitchen table or, if that proves impossible, use other forms of dispute resolution, such as family mediation. It's cheaper, quicker and more certain than fighting it out in court.
Cost can be a big challenge for all but the super rich - what you pay to solicitors can deplete the family 'pot'. In the absence of meaningful cost penalties, the client never recovers these costs. There's no doubt that the ability to pay does affect the calibre of solicitors available to you, but there are alternatives in the form of litigation funding or ad-hoc usage of legal advice, known as 'unbundling'. It is worth enquiring if these services are available before selecting a solicitor.
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