Choosing the appropriate legal process when relationships break down

05 October 2021

If you find yourself in a situation where you are facing a separation, or thinking about separating, there may be a number of issues you need to deal with, for example, sorting out your finances or, in respect of any children, agreeing their day to day care arrangements.

If you and your former partner are unable to reach agreement, you may think your only option is to go to Court.  However, there are a number of alternative processes available. 

In this short article we set out some options for you to consider:

Direct agreement: this is where agreement is reached between you and your former partner.  We recommend that you instruct a lawyer to put the agreement into effect and, ideally, take specialist legal advice before entering into any discussions with your former partner so you are aware of your legal rights.

Instruct a Lawyer: they will provide you with legal advice and can try to reach an agreement on your behalf with your ex-partner, or their lawyer.  This can be by way of an exchange of letters, telephone calls and/or meetings.  In the case of a financial settlement, any agreement reached is then recorded in a legally binding Separation and Relationship Property Agreement or, in the case of children matters, agreement could be formalised by way of a Consent Order, or Parenting Agreement.

Mediation:  mediation can be used to try to resolve any number of issues between you and your ex-partner. With this process you both engage an independent mediator who facilitates discussions to try to help you reach agreement.  On some occasions you and your former partner will be in separate rooms and, in some circumstances, with your lawyers present as well.

Arbitration: you and your former partner engage a trained arbitrator to adjudicate on the issue(s) between you.  The arbitrator makes a decision which is then binding on the two of you.  This can sometimes be useful when there are discrete issues in dispute.

The Court route: if you and your former partner are unable to reach agreement, or even progress matters, it may be that the intervention of the Court is required.  Your lawyer can help you prepare the necessary documents to file with the Court.  There is then a Court imposed timetable.  At each stage in the Court process the lawyers and the Judge are trying to help you reach a settlement but, if matters cannot be resolved, then your matter may proceed to a fixture at which a Judge decides the outcome for you and your family.

Whatever stage you may be at, and wherever you see yourself in the terms of these process options, it is important to take early and specialist legal advice so you are aware of your options and you are making informed decisions at every stage.  Please feel free to contact any member of our family law team for further help.

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