Divorce law in England and Wales does not adopt a 50/50 approach to dividing assets; in fact, the law does not make an attempt to control the division of property and finances unless it is requested to do so. Reaching an out-of-court divorce settlement often requires solicitors to negotiate terms on behalf of their clients and this can be an expensive and emotional process.
To facilitate a quick, fair and reasonable division of assets, a divorcing couple should communicate with each other as much and as often as necessary. In an ideal world, communication would be positive and friendly, enabling couples to reach sensible decisions on how best to proceed with the divorce. Unfortunately, few divorcing couples live in an ideal world; they live in a place where anger, hate, bitterness and depression grip their every thought.
While arguments should be expected among people who are in the process of separating, they rarely help anybody. In the case of discussing a divorce settlement, conflict usually results in one person holding the other to ransom; indeed, many aggrieved partners have attempted to punish their unreasonable or adulterous spouses by ‘taking them to the cleaners’. Financial settlements may provide an opportunity for revenge, but as the old saying goes, nobody gets ahead when they are trying to get even.
The best starting point for divorcing couples is to avail themselves of professional mediation services. Mediation, counselling or alternative dispute resolution (ADR) is being put forward to couples by government in an effort to cut the divorce rate, reduce the duration of proceedings and limit costs. Mediation encourages couples to discuss their feelings in an open, honest and non-judgemental environment. Although conflict often arises during sessions, disputes can be resolved with time, as mediators or counsellors ensure that their clients’ thoughts and feelings are explored.
Mediation rarely ends in quarrelling spouses walking off together into the sunset, but it can help them find common ground. Crucially, mediation can help people acquire closure or acceptance of the situation. To settle divorce amicably, spouses must be able to discuss terms in a way that can be described as mature and reasoned. Most discussions on divorce settlements, however, involve competing teams of solicitors. How solicitors have been instructed to proceed very much determines the difficulty and longevity of negotiations. Unfortunately, batting offers and counteroffers between teams of lawyers serves no real benefit for the couple; indeed, protracted negotiations merely increase the cost of divorce.
Solicitors and mediators can only be used for so long; eventually, divorcing couples who cannot agree on how best to divide their assets must go to court, which will complete the task for them. In many cases, court intervention is only required because one or both spouses fail to concede ground on issues such as child maintenance, property ownership and the division of savings, shares or some other form of financial wealth.
A court has the power to make a financial order, assigning property and assets as it sees fit. To a large extent, rules become irrelevant at this stage, as the judge has to consider all aspects of the application before exercising his discretion to make a ruling. The court might, for example, award all property to the wife and a large proportion of savings to the husband. The judge would aim to provide security for children as a priority, but each settlement turns on its facts; there is no telling how the court will divide assets if a financial order has been requested.
This guest post has been written By Saul Malpass on behalf of Switalskis Family Law .