In most cases, getting a divorce is a straightforward court process. What is much less likely to be straightforward is reaching an agreement on the financial aspects of a separation. In Scotland the financial aspects of the separation need to be agreed before parties can divorce. Unless financial claims are sorted before or when you divorce, particularly in relation to pension rights, they are likely to be lost.
Most people want to avoid the inevitable stress and expense of going to court to sort out the financial aspects of their separation, so what are the alternatives?
Here a trained family mediator will guide a couple, whose relationship has broken down, to find their own solutions in relation to the financial aspects of their separation. Mediators are non-judgemental and do not act as decision makers in the way a Court would. The parties sign an agreement to mediate at the outset. There are then a series of meetings with the mediator to help parties work out their own solutions. The first meeting is between the mediator and each of the parties individually, to explain the process and take some initial information. Then the parties themselves, together, with the help of the mediator, work towards a mutually acceptable resolution of their issues. This should be done in a constructive and non-confrontational way. The parties can then use their own solicitors to have the matters dealt with at mediation set out in a binding written Agreement. This then leaves the Court to deal with the actual divorce.
Here parties will be guided through a process by and with their own Solicitor who will be trained in using the collaborative practice. The parties “sign up” to using this process at the outset. The aim is to reach agreement on the financial aspects of a separation and have these set out in a formal and binding written Agreement. The process involves meetings with both parties and their solicitors together, to try and reach a solution. Financial specialists and family consultants (also trained in collaborative practice) can provide additional support, if required. The solicitors who work with the couple through the collaborative process will not be able to represent them in Court if the process does not work. This is to encourage parties to reach a successful conclusion. Again, the actual divorce requires the involvement of the Court.
Here a family law trained Arbitrator is appointed as the decision maker in relation to any financial dispute arising from the separation. The parties (or their legal representative) will make a written application to the Arbitrator setting out the issues in dispute and the basis of their claim. Both parties will have an opportunity to answer the other party’s claim. Evidence will be considered by the Arbitrator – this might be in writing or evidence might be given in person. You can be represented by your solicitor, Advocate or yourself in this process. Both parties agree at the beginning of the process, to be bound by the Arbitrator’s decision (award). A Court is still needed to formally divorce you.
A specialist family law solicitor is used to negotiate the financial aspects of separation. This can be done in writing; at a joint meeting involving only the solicitors; at a joint meeting involving parties or using shuttle negotiation where parties are in separate rooms and the solicitors meet to exchange information and try to reach a settlement. That settlement can then be set out in a formal Agreement which can be registered to give the financial orders in it the same effect as a Court Order. You do still need to ask the Court for your divorce, but this is straightforward if the financial aspects of the separation are sorted and can be done on an undefended basis with no need to appear in Court.
This article originally featured in The Scotsman on 14 March 2022.