UK Divorce Including the Role of Mediation

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Since the 1969 Divorce Reform Act a marriage can be dissolved if it has irretrievably broken down. A couple have to be married for twelve months before they can divorce except in exceptional cases of very bad behaviour. To satisfy a court that it has irretrievably broken down one of five facts has to be established:

a) Adultery or
b) Unreasonable Behaviour or
c) Desertion for two years or
d) Separation for two years with the Respondent's consent or
e) Five years separation regardless of consent by the other party.

Similar provisions apply to Civil Partnerships.

The Matrimonial Causes Act 1973, which governs much of the law and procedure relating to divorce and civil partnerships and their termination, has no application at present to cohabitating couples. It is frequently debated whether long term cohabiting couples should enjoy greater protection but this has not, at the time of publication, been confirmed in any Statute. Judges are beginning to give pre-marriage cohabitation some recognition in resolving financial matters in divorce.

Couples that solely cohabit have to rely on the natural law of the land in interpreting their respective rights in property. This is a complex area requiring a detailed analysis of contributions of substance, implied, constructive or resulting trusts and an analysis of the intention of the parties.

A Petition for Divorce alleging one of the five facts set out above is presented to the court and the significant court fee is paid unless the petitioner is exempt because they are in receipt of a passporting state benefit or are on an extremely low income. There is a means assessment form available from the Court Office for this purpose.

The Respondent replies to the allegations of the Petitioner. S/he has the option to defend, which is very rare these days, but if the divorce is to proceed on a consensual or agreed basis the Respondent will sign a form of receipt known as the Acknowledgment of Service and return it to the Court Office. The Court Office then sends out a standard form of Affidavit to the Petitioner for her/him to complete with certain formal information, and in particular, to swear that the contents of her/his Petition are correct.

The Judge will consider any arrangements for the children and if s/he is satisfied with those arrangements there will be a formal pronouncement of a Decree Nisi. If the Judge is not satisfied concerning the arrangements for the children he may call the parties before him to explore those arrangements in more detail before granting the Decree Nisi. Six weeks after the Decree Nisi, upon payment of a further fee, the Decree Absolute can be obtained by the Petitioning Party. The Respondent has to wait for 3 months before applying for the decree Absolute if the Petitioner does not apply.

Usually, just before the Decree Absolute the Petitioner and Respondent, if in agreement, can lodge at court details of a Consent Order dealing with Ancillary Matters. Another fee is payable. Ancillary Matters are those issues relating to children and finance. If there can be no agreement between the couple they turn to the Law for guidance and often see a Solicitor.

SO WHERE DOES MEDIATION FIT IN?

Today Mediation is often encouraged by the Courts and the Legal Aid Authorities as it is a cheaper and swifter way of resolving matters ancillary to divorce. Private individuals are also becoming more aware of Mediation as an alternative way of resolving their disputes and often bypass the solicitor by self referring to a Mediation Service. The principal attraction is speed,(5 - 10 weeks) less expense (often less than £1000 per party) and the ability to have input into one's own outcome. This is arguably a more “user friendly” way of resolving pithy problems that may come at a very emotional time for the couple. It is not however a soft option and the couple have to work hard to achieve what they regard as a fair settlement.

Initially the parties are referred by their solicitors, or self refer, to a Mediation Service. Their first meeting would be the "Intake" process. If the Service has a legal Aid Franchise the parties can be assessed for legal aid. This first Intake meeting is with each party separately and a Mediator to assess legal aid eligibility, the suitability of the subject matter and overall circumstances, and to explain the Mediation process. If there are serious domestic violence or child abuse isses it is unlikely that mediation will be deemed suitable.

If both parties sign up for Mediation, either with the benefit of free legal aid (no repayment to the legal aid fund) or privately, the first Mediation meeting will be arranged by mutual consent. The entire process is not only confidential but also priviledged. This empowers the clients to explore fully all possible options without the fear that anything they have said will be used against them in court proceedings.

In Family Mediation (Commercial Mediation is a different topic and operates slightly differently) it is usual for the two parties to meet together with the Mediator. If there is very high conflict between the couple however it should be possible for the couple to be seen separately.

The Mediator, who will be totally impartial, will attend with both parties at the first Mediation meeting and the process will begin. The Mediator, being impartial, cannot give advice but can give information on any relevant topic if it is of mutual benefit. There may be a need for between two and five meetings* depending on the complexity of the subject matter (children and/or financial issues)and the willingness of the couple to discuss and enter into a 'give and take' approach. Each meeting lasts approximately one and a half hours. The couple would be encouraged to discuss their needs and wants in an orderly fashion. An agenda would be set covering the various issues surrounding contact and residence of children and settlement of maintenance, property, pension, house contents and personal effects.

The couple, having debated extensively throughout, will have invested a lot of their own time, thought processes and emotion in developing their own points of view. Should they reach agreement on most or all of their outstanding issues it is likely they will embrace the settlement more than if it is imposed on them by a Judge or Solicitor - especially after a traumatic court process. Mediation also helps the couple to move on and yet maintain at the least a working relationship for the sake of children. Significantly communication is enhanced which is often not the case after the court process.

If agreement can be reached in Mediation on these issues, (in the researcher's experience generally 8 out of 10 have successful conclusions), documentation is prepared by the Mediator. This comprises a Memorandum of Understanding and an Official Statement of Financial Information which is disclosed to the lawyers where they are instructed. Initially the documents are vetted by the parties and their respective Solicitors before becoming an agreed Consent Order at court. For parties without solicitors the Court may give assistance in completing a Consent Order but cannot give advice.

If both Parties require a “Clean Break” a Court Order is essential and gives legal effect to that wish, resolving matters finally between the couple. However, for children issues surrounding financial matters including maintenance, contact and residence, the doors of the court are never closed and these cannot be subject to a Clean Break Order.

(visit www.accordmediation.co.uk for more information).

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