News and Insights
28 September 2016
There are a number of other choices for divorcing couples
Gone are the days when a courtroom battle was the only option for married couples who could not agree on what should happen to their finances on the breakdown of the relationship. Nowadays there are a number of other choices for divorcing couples who want to ensure that their financial affairs and other aspects of their relationship are dealt with (and kept) behind closed doors.
It was recently reported that in England the number of family disputes resolved outside court has doubled [The Times, 09/06/2016]. From what we have seen, this trend is also on the up in Jersey.
Out of court alternatives
Arbitration and ‘financial dispute resolution’ (FDR’s) are the main alternative methods available in cases that are otherwise destined to make it to final hearings before the court. In both instances, the couple agree on a judge-led private session and the dispute is kept away from the court. There are differences between these two options, but both have many advantages compared with going to court.
Arbitration is a process entered into by the couple where they both accept that the view of the arbitrator will be binding upon them. In Jersey, there would appear to be no reason why arbitration in family cases cannot be used. We have the Arbitration Law 1998 and, under article 29 of that Law, the court can enforce the award of the arbitrator if either party tries to ignore the arbitration award. This means that the decision of the arbitrator will be binding. In practice, arbitration is rarely used in Jersey but, just as in England, it is now being considered more and more.
FDR is a different method of dispute resolution and has more in common with traditional mediation. The difference (and it is a crucial one) is that the private judge will indicate a likely outcome if the case were to go to court. This can be very powerful and, in numerous cases that Viberts has been involved in over the last six years, the FDR has led to a resolution of the case. In so doing, the need for (and expense of) further legal intervention is avoided.
What are the advantages of using an out of court method?
Efficiency and economy - the case can be concluded more quickly and at a lower cost than using the court method;
No delays - the couple do not have to wait for space in the court diary and then for the judgment to be issued by the court;
Privacy - there is no risk that any of the facts of the case will be made public. In Jersey, finance cases which do not involve minor children can be heard in public and the names of the parties can be reported in the Jersey Law Reports. Many couples simply do not want the risk of this happening;
No stressful court proceedings - the couple avoid the stress of having to go to court for a final hearing and giving evidence before the court. It is difficult to place a price on alleviating the stress that the couple would otherwise be under at a final hearing.
Successful track record
In England it seems that 85% of cases where the above options are used have been successful. Having encouraged FDR’s for a number of years now at Viberts, our experience tells us that this success rate is reflected in Jersey.
There will always be cases that still come before the courts, but we would always encourage couples to consider ways of making the process less antagonistic, cheaper and less stressful. Settling your family disputes out of court ticks all these boxes.