By Vanssa Lloyd Platt
Lloyd Platt & Co
As a divorce lawyer with over forty years’ experience in the field, one of the most typical questions asked by clients is “why do I have to go to Court”. In each case, it will turn on whether the client believes that their partner will make full and proper disclosure of assets, whether there have been previous attempts at negotiating that have failed miserably, whether there has been duress brought to bear, whether one of the parties is acting in a narcissistic manner and the list goes on.
The job of a lawyer is to establish whether it is possible to reach a financial settlement without recourse to the court. There are many ways of achieving this if both parties have the will to do so, and approach the matter with a view to making open, full, and honest disclosure.
One way of reaching a financial settlement is for the parties to enter into mediation with a qualified mediator. There will need to be full disclosure by the parties to work with that mediator to achieve an overall financial settlement which will meet the needs of both parties. If there is a mediated settlement, then the parties will take that settlement to their solicitors leaving them to draw up what is known as a “Consent Order” to embody the terms agreed.
That Consent Order will then be placed before the Court and in most cases stamped by the Judge, without the need for the parties to attend. After that time the parties can divide up their assets and commence payment of maintenance in accordance with that settlement. In those cases, there would be no need for a full-blown hearing in front of the Court or the attendant costs.
Similarly, agreements can be reached between solicitors after what is known as “voluntary disclosure” between the parties, where the solicitors will then proceed to draw up a consent order embodying the terms and lodge with the Court for stamping as above. Some clients choose to undertake Arbitration, where the Arbitrator’s decision on the finances is final and there is no need to go to the Court.
Collaborative law is another process whereby both parties and lawyers sign up that they will never go to court and agree to negotiate the terms of a settlement between solicitors and thereafter lodge the same with the court without the necessity of attendance.
There is also another process known as “Private FDRs”, whereby it can be agreed that the parties will appoint a Judge who they will pay, who will assess and help them reach a final settlement which will then be placed before the Court in a Consent Order.
In conclusion, if the parties are willing, there will be in some cases no need to involve the court at all other than by ratifying the financial agreement by way of a consent order. However, not all parties can agree matters simplistically or easily particularly where there have been complex finances in play, offshore accounts, properties, pensions or complex businesses. In those cases, sometimes the assistance of forensic accountants and preliminary court hearings can still lead to an overall financial settlement.
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