Divorce and Money – Is there another way to settle matters?
Every year in Jersey many wives and husbands get divorced. In turn the Family court in the Island simply becomes busier and busier. Delays in dealing with cases become inevitable. Using the court process is expensive, stressful and time consuming. By asking the judge to make a decision about the finances of the family means that neither party to the divorce has any effective say in how the money and property are split. Inevitably one or at times both the wife and the husband will be left with a decision that they are unhappy with and having gone through the court process the relationship between them may well have broken down completely.
Are the other ways of resolving financial disputes after the marriage has broken down? The answer is a resounding "yes".
I would argue from my experience in dealing with hundreds of divorce cases that there are very few cases that are unsuitable for what is called alternative dispute resolution. In the vast majority of cases there is no reason why a compromise cannot be reached either before the court process has started or even once court proceedings have been commenced. In fact, some of the most successful settlements that I have helped negotiate have been reached quite a long way into the court process.
The advantages of settling are fairly obvious. The legal costs will be lower, the stress will be hugely reduced to both the wife and the husband and perhaps most importantly the decision will be reached by both parties and not by the court and this can have an incredibly beneficial effect in helping them move forward. This will of course be advantageous for any children of the marriage too.
What then are the alternatives that are available in Jersey for couples wishing to avoid the stress of full-blown court proceedings?
I have successfully used 3 different approaches to resolving financial matters. These are traditional mediation, collaborative law and what I term private financial dispute resolution.
It has long been the practice of the family court in England and Wales to use a process called a FDR (financial dispute resolution). This process ensures that the judge encourages the parties to reach an agreement at a fairly early stage in the court proceedings. Statistics show that the FDR is successful in about 85% of cases. The system is not perfect even in England & Wales. There appear to be more and more delays affecting the family courts there and the system relies on having the right number of appropriately qualified family judges. This process is not available in Jersey and therefore it is even more important for the parties to look to other methods of resolving their issues.
Another message that I wish to give to divorcing couples loudly and clearly is that it is imperative that the lawyers engaged by both wife and husband specialise in family law and are supportive of the need to resolve matters outside the court arena. Unfortunately there are still too many lawyers practising family law in the Island who see divorce as a battle to be won and often do not give their clients the full range of choices that are available to them in terms of settling matters.
Looking at the different options briefly as follows:
Mediation – this is the type of alternative dispute resolution that is probably the most recognised by divorcing couples. During the mediation process the independent mediator will attempt to get the couple to reach their own agreement. Often lawyers will not be present during the mediation and the mediator can be legally trained but this is not always the case.
Collaborative law – this is a process whereby the parties and their respective lawyers commit themselves to trying to reach an agreement outside the arena of the court. There are a series of meeting held called four-way meetings and attempts are made to settle matters and an agreement is then put before the court for ratification. In order to practice collaborative law it is important that the lawyers involved have undertaken the necessary training.
Private FDRs – this is where the parties ask an experienced lawyer to effectively act as a judge in order to bring them to an agreement or at least to narrow the issues that are dividing them.
In my experience, I would say that all of the above have advantages and disadvantages. Each case is different and one of the skills of a good family lawyer is to be able to recognise cases that are suitable for each approach. For example, it is unlikely that a case would be suitable for mediation if one of the parties were fearful or very dominated by the other. However, I have successfully used the private FDR method in such cases. Again in my experience none of the above approaches will work if one party is seeking to hide assets from the other. These are the cases, which will require the court process to assist at least to begin with until full disclosure is made.
At Viberts we look at the various alternatives in every case. We encourage clients to make full disclosure of their assets as early on as possible, stress the importance of avoiding unnecessary legal costs and consider which approach suits that particular client and set of circumstances. Two of the partners are trained to practice collaborative law, a qualified Jersey lawyer will always be involved in any settlement meetings and we have strong links with specialist Counsel in London who are able to both give advice and assistance in difficult cases but also act as mediators or facilitators in a case where a private FDR is appropriate.
Divorce is one of the most stressful life events. Huge sums of money can be wasted in a battle between couples unless the lawyers instructed recognise these factors plus are able to consider the case strategically right from the first time that they meet the client and are able to identify the most appropriate method of resolving the case.
Advocate Rose Colley