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I’m thinking of separating – what are my options?

Video Transcription

Mark Day: I always explain it very simply. You've got two options when you're trying to resolve the practical aspects of separating. Number one, you can agree on it, or number two, you can go to court, and you can let a judge decide. The way I always advise is the courts should be viewed as a necessary evil. They are places to avoid, but for some people, unfortunately, they will become involved. They will never become involved automatically, simply by engaging with a lawyer. You won't automatically engage the court process. You need to view your lawyer as a very well-trained little lapdog. We're very well trained. We do exactly as we're told. Our job is to give you options. If you're looking to reach an agreement and you don't want to go to court under any costs, then there are various processes available.

The first and most obvious one, is people use us as a sounding board. They'll come and talk to us and we'll give them advice. We'll give them options. We'll give them an overview of the future, what the future might hold. Armed with that information, they'll go off and they'll have a relationship with their soon-to-be ex-partner, and they will resolve either all or some of it and come back and inform us what that is. Great. Cheap and cheerful. Very happy. We're delighted with that. I'm not here to force-feed ridiculous, antiquated legal principles down anybody's throats. I'm here to try to secure an end result, an agreement that they are happy with. So that's the first option.

The second option, collaborative law. Many people regard that with some suspicion, something that came out of America about 25 years ago. In very simple terms, there are many, very well qualified family practitioners, who will also qualify as collaborative lawyers. Within that process, couples will engage with each other and they'll engage with their lawyers. They all will sign a contract, a participation agreement that says, "Under no circumstances will we let of differences dissolve into court proceedings. We will commit to a series of round table meetings where we'll disclose our financial position. We'll discuss very openly the issues. And rather than the lawyers whispering in corners, forging tactics, the advice that the lawyers give is given in front of both parties whilst they're there.

The whole meeting is conducted "off the record" without prejudice, meaning that there's a lot of openness. Both parties can take the advice from both lawyers, and they can consider that advice, and they can decide the best way forward. So most of those meetings will revolve around identifying common hurdles and the lawyers throwing in ideas to overcome those hurdles and, by and large, the parties will resolve those issues. They'll come to an agreement and we'll tie up a very good agreement. By far, if I was having friends or family going through any process, I'd be recommending that course of action. But it's not suitable for everybody, for obvious reasons.

Mediation, similar dynamics, but the parties will go off and speak to an impartial mediator, and they will engage with that mediator. The mediator will not give advice. They won't represent either party, but within the course of that process, the mediator will identify exactly what the issues are that need to be discussed, or they should be addressing. The mediator will record any discussions, any agreements that they reach, and then with those partial or full agreements, they'll go back, and they'll take separate legal advice and, ideally, get them tied up.

The final option is really, I suppose, securing legal advice in the traditional sense of the word, where you put on your lawyer hat. You'll talk to them and you'll become their mouthpiece. You'll become their advocate. You can resort to court proceedings within that process, but I still find that most people don't want to do that unless it's the last resort. So in those circumstances, it's a case of pragmatic advice and giving suggestions about the best way, the options to go forward. Whether that's in the form of round-the-table meetings, whether it's in the form of correspondence or negotiation, that remains to be seen, but within the more traditional sense, we still act as an advocate. And when people need some robust representation, then we can provide that. We'll try and do that without fanning the flames and stirring things up to make it even more difficult than they already were.

Key contact

Mark Day, Partner and Head of Family Law

Mark Day

Partner and Head of Family Law

Call 01904 610886