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One of the most frequently asked questions which our busy family law team receive is whether or not it will be necessary for a case to go to court. It is entirely understandable that this should be a concern to most people.
The very idea of having to go to court, face a former partner and discuss with strangers matters which, perhaps only a few months previously, were at the very core of the relationship, is one that fills most people with dread.
The answer, however, to the question about going to court, is not one to which a simple ‘yes’ or ‘no’ can easily be given. As so often with problems, the reality is that ‘it depends’.
The involvement of the law
In a liberal democracy, as opposed, for example, to a dictatorship or a communist state, governments recognise that there are many different ways of living. People can choose their way of life as long as that choice comes within the boundaries of accepted norms in that society. Those norms will change and develop with time but, by and large, people are left to live their lives as they wish as long as others are not being harmed or the generally accepted structure of society breached.
The below examples illustrate this point.
The formation of a relationship and family life
It is not so many years ago that relationships between people of different ethnic origins were, if not illegal, then often frowned upon. Now they are commonplace and not worthy of adverse comment.
It is only just over 50 years since homosexuality ceased to be illegal. Civil partnerships have now been possible for over ten years, progressing three years ago to same sex marriages.
The partners in a same sex relationship will now be eligible to adopt a child, in a way which would have been described only ten years ago as ‘unnatural’ and contrary to the best interests of a child.
In each of these situations, the attitude of society has moved on to reflect the changes in which a significant number of people choose to live their lives.
It should also be noted, however, that in two of those situations, there are certain legal formalities which have to be observed.
From the first example, it is now common for two people, of whichever gender, to choose to live together outside marriage or a civil partnership without any involvement from the state. There is no ceremony which has to be performed, no registration to be completed, no official notification to be given to anyone.
In the second and third examples, the law imposes obligations which have to be observed. To marry, whether in a church or in a civil ceremony, notice has to be given, there has to be a formal ceremony and a registration process.
To adopt a child, the law requires a detailed investigation by social workers (on behalf of the state) to establish the suitability of the couple to adopt the child and whether that would be in the child’s best interests.
The breakdown of a relationship – the same question, do I have to go to court?
The answer remains the same: sometimes yes and sometimes, no.
Take these examples.
- A couple have been living together outside marriage for some time and there are no children. No legal document is required to prove that they have separated. If they are able to sort out the financial arrangements between them, then there will be no need to go to court. If both feel confident and content with the arrangements, it will not even be necessary for either of them to take legal advice.
- If there are children, the parties will have to try to agree the arrangements for the future, such as where the children are to live, visiting arrangements, financial support for the main carer, the possibility of a change of name or even being taken abroad to live. In each of these situations the law has something to say about how they should be approached, particularly if the former partners are not able to agree between themselves and the case might have to go to court.
- At the end of a marriage, at least one of the partners will usually want a divorce. This will involve a legal process that has to be followed. These days, it is very rare for divorces to be defended and the procedure can be completed without having to make a personal appearance at court.
- Similarly, on the separation of a couple who are in a marriage or civil partnership, there may be financial arrangements which have to be sorted out. Even if it is possible for the former partners to come to an agreement, the law requires the agreement to be ratified in court (usually without either of the partners attending personally) in order to avoid the possibility of any further financial claim at a later date.
What about alternative dispute resolution to avoid court?
Nowadays, there is a great emphasis on helping couples to find ways to settle issues which arise from a separation, without the need for a full-blown court case.
The most common ways are:
- Discussion between the parties themselves. Some parties think that because their relationship has broken down, it is not permitted or possible for them to try resolve problems by discussion. Not only is it possible, but it is actively encouraged. However, such an approach will work only in some cases and, in others, alternative methods will have to be sought.
- Discussion between lawyers. Solicitors, particularly those who work under the auspices of organisations such as “Resolution” or “Collaborative law”, will invariably search for ways in which their client’s case can be resolved on fair terms without having to go to court.
- Mediation. Some relationship situations are particularly suited to resolution between the parties with the help of a trained and skilled mediator. The mediator does not give legal advice; rather, the couple are encouraged to identify ways in which, by discussion and negotiation, they may be able, between themselves, to find solutions.
- Arbitration. This is a form of court resolution which takes place in private, not before a ‘judge’ but a legally qualified person (often a retired judge or a legal practitioner skilled in this area of the law). The parties have to pay for the services of the arbitrator but the process is normally quicker than in formal court proceedings. In financial cases, once the arbitrator has made a decision, it has to be converted into a formal court order, which, in most cases, can be done simply by sending the papers to the court with all the background information and inviting the court to confirm the decision as a court order.
Early neutral evaluation or private financial dispute resolution
This method is becoming increasingly popular, particularly where the parties want to achieve a settlement but find that they are unable to agree what the outcome would be if the case went to court. In such cases, they employ the services of a consultant (again, usually a retired judge or a legal practitioner) who, having examined all the facts of the case and discussed them with the parties, gives, in private, a view of how it is thought that the case might be decided if it went to court. In this way, the parties have the advantage or an early and much quicker indication from an independent expert of how the case is likely to be resolved, thus, hopefully, saving them the stress, anxiety, delay and expense of a court hearing.
The above discussion has only dealt with some of the situations in which it might be possible to avoid going to court. Our expert lawyers will be able to give more specific advice based on the circumstances of a particular case.
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