Wednesday, April 10th, 2019
In England and Wales there is no precise mathematical formula that will tell you what you should get (or what you should give up) on divorce (save in relation to a child support). There are simply guidelines (Section 25 Matrimonial Causes Act 1973) and reported cases that have shaped the law over time. If you go to 10 different lawyers, you may get 10 different answers and if you go to a fully contested trial then different judges would give different judgments. That is not to say anyone is right or wrong but just that there is judicial discretion and whilst there is discretion the outcome in pursuing a case to court is uncertain.
The law allows for flexibility and for Judges to achieve justice by delivering an order to suit the individual circumstances of each case. No two cases are the same and that is why when lawyers try and interpret trends or ‘ratios’ from the reported cases, as many other lawyers will try and distinguish those cases and say they don’t really apply. This uncertainty over outcome is understandably hard to contend with. Further it is frequently hard for people who are hurt emotionally and anxious about their financial future to see matters clearly.
Where does that leave the clients?
It leaves people having to carefully consider the parameters of any possible outcome and to make a careful judgment call as to whether it is really worth litigating over; that is whether the risks of pursuing your ‘best’ possible outcome are likely to outweigh the risks of not getting it (or even getting your worst possible outcome) bearing in mind the money you will spend on legal fees pursuing the case. It is not only the financial costs of litigation – there is a considerable emotional cost of litigating through the courts which should never be underestimated. It is particularly sad if children are involved as, once over a certain age, they are often aware their parents are in dispute – whether over them or over finances. If you and your spouse have children and are going to continue to co-parent then it is more important to try and avoid acrimonious litigation which can sour relations for a very long time and negatively impact on your children.
Perhaps there are some tips:
- If you are on a reasonably equal footing in terms of ability to understand legal concepts, finances and figures then do consider Mediation (but also take advice from your solicitor alongside the Mediation process)
- Consider other forms of ADR (Alternative Dispute Resolution) such as Arbitration, a private FDR or Collaborative Law
- Chose a solicitor who specialises in this area of law and who is pragmatic and realistic – be wary of those who over-offer and under-deliver, like estate agents who talk up the value of your home
- Always be measured in responses whatever is thrown at you
- Use commercial judgement in considering any financial division and try not to let emotions sway you
- Try and keep lines of communication with your spouse open and in communicating choose your words carefully – do not use inflammatory language
- Always look at the value of what you are arguing over compared to the legal and emotional costs of continuing the dispute – that is keep an eye on the bigger picture
- Do not rely on friends and relatives to advise – however well intended they will only hear your side and they are probably do not have as much experience in family law as your solicitor
- Avoid putting anything in relation to you divorce on social media
- Just because you are hurt or angry do not think that you will feel better to have your ‘day in court’- it may not go as you expect, the Judge may not be sympathetic, and will not take account of any bad behaviour of your spouse (unless it is truly exceptional) in dividing finances
At the end of the day, the best settlement is one that you can reasonably provide for your needs, is fair to both and is reached without spending huge sums on legal costs.
If you want help with a divorce call a member of our family law team on 020 7228 0017.
Hanne & Co