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Is court the only option for reaching a financial agreement in a divorce?

Published: 25 January 2024
Time to read: 3 mins

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 divorce or they are at the risk of being lost. This is particularly the case in relation to pensions.

Most people would like 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?

Family Mediation

Here a 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 neutral individuals and do not act as decision makers in the way a judge in 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 gather some initial information. Then the parties themselves, 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.

Collaborative Practice

Here parties will be guided through a process by and with their own Solicitor who will be trained in using the collaborative process. 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 then have this set out in a formal and binding written Agreement at the end.  The process involves meetings involving both parties and their solicitors together, to try and reach a solution.  Financial advisors and family consultants (counsellor) provide additional support.

Arbitration

Here a family law trained Arbitrator is appointed as the decision maker in relation to any financial dispute arising from the separation. It is like appointing a private judge. 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 choose to be represented by your solicitor or Advocate in this process. Both parties agree at the beginning of the process, to be bound by the Arbitrator’s decision (award).

Your Solicitor

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 both parties or by using shuttle negotiation where parties are in separate rooms and the solicitors meet to exchange information to reach a settlement. That settlement can then be set out in a formal written Agreement signed by both parties at the end.

Whilst only a Court can give you your Divorce, there are many less stressful options that can be considered for agreeing on the financial aspects of your separation.

If you would like to discuss your options further, please get in touch with a member of our Family Law team.

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