Will I have to go to court?

When a domestic relationship breaks down, whether or not the parties are married, there are many practical arrangements that have to be sorted out. One of the most frequently asked questions is “Will I have to go to Court?”

Unfortunately there is no single answer except “it depends”. Below, we look at some of the situations in which going to court is normally required and those when it is not.

Trying to achieve agreement

The first point to make is that all good solicitors will do whatever they can to try to settle by negotiation and agreement issues between the parties. In this way, the scope for stress, animosity and expense is reduced. Experienced solicitors will know the range of options which are likely to apply to particular situations and will be able to advise on sensible solutions. Such an approach should not be regarded as sign of weakness: in fact it demonstrates a willingness to adopt a practical and realistic approach.

Attempts to achieve an agreement can take one of several courses. For example, the vast majority of financial disputes between separating parties are resolved by negotiations between solicitors.

In other situations, for example those relating to children, a third party with experience in dispute resolution, such as a mediator, a child social worker or even an arbitrator, can be useful in achieving a solution.

Having said that, it is the case that such an agreed solution can only be achieved if both parties are willing to try to achieve it. Sometimes one of them, for whatever reason, is not prepared to do so: in other cases, even with the best of intentions, it proves impossible to reach agreement.

What is the dispute about?

Whether or not a court has to be involved in resolving disputes and if so, whether one or both parties will have to go to court personally, will depend on the type of dispute. Here are a few examples:

• If the parties are married, in the vast majority of cases when there is a separation, a divorce will follow. Most divorce cases are not disputed. In other words, the divorce itself goes through as a paper exercise and the court is able to deal with it without either party having to attend court.
• If however, there are parts of the separation between a married couple that are disputed then it is quite likely that there will have to be a court case and the parties will have to attend court personally. Such disputes most frequently relate either to the finances of the parties and how they are to be split or the arrangements for children.
• If the parties are not married, there will still be some situations in which the post-separation arrangements, if not agreed, will have to go to court. Again, the most usual example of such cases involve money and/or children.
• There are some situations which have to involve the court whether or not the parties are married. Such cases might involve, for example,
  • where there has been domestic violence and one party has to seek a court order restraining the other party
  •  if one party either threatens to of has removed a child from the country without the agreement of the other party
  • where there is a danger that one party might attempt (or has done so) to dispose of or hide part of the finances which have to be dealt with.

In any of these cases, the likelihood is that at least on the parties will have to attend court.

Will I have to speak if I go to court

Factual dispute

In virtually every court case, if part of what is in dispute between the parties is what happened factually between them, then it is only right that each has the chance to give their own version of events. It will then be up to the judge to decide which version of events is regarded as more likely, which will include taking note of what is said by any other witnesses.

Most people do not relish the idea of speaking, let alone being questioned, in the formal atmosphere of a court, about events which may have caused emotional or even physical harm. However, getting to the truth of the issues is what court cases are about.

Dispute about the law or its application

If, however, what has to be decided depends on the interpretation or application of the law, then it is quite likely that the issues and arguments will be put to the court by the advocates (barrister or solicitor) appearing for the parties. Obviously, if either or even both, of the parties is not legally represented, then each will have to put their own case to the judge.

Parties can take comfort from the fact that judges nowadays are very much more attuned to dealing with cases in ways which take account of the vulnerabilities or anxieties of the parties. Appearing in court is less stressful on that account than it used to be.

Nevertheless, it remains true that, if it is possible to find solutions without having to take that last step, then the general rule is that it is sensible to do so.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.