Divorce is never easy. Most couples want a clean break so they can move on with their lives. Despite the array of high-profile court cases, most of the 102,678 divorces in England and Wales in latest figures didn’t involve expensive court hearings.
Opting for an out-of-court divorce is the ideal outcome, limiting the stress and expense of getting a divorce. It’s also the preferred position of courts, judges, and solicitors, encouraging mediation and dispute resolution before proceeding to formal court hearings.
But how do out-of-court divorce settlements work?
What is an ‘out of court’ divorce?
The Family Court is always involved in divorces because, like marriage, divorce is a legal process. Your solicitor will need to file the necessary documents with the court, but in an out-of-court divorce, you won’t have to attend. The same goes for the final divorce settlement. You’ll agree to the terms, submit your consent order, and your solicitor will file it for you.
An out-of-court divorce is a term used to describe divorces that are handled entirely between couples and their solicitors without the need for contested court hearings. Obviously, it’s the most straightforward process, and if you can co-operate with your ex-partner, it’s both the fastest and most cost-effective way to get divorced.
That’s how most divorces happen. For example, a study found that only a third of couples finalise their finances via a court order, with just one in 10 actually going to court themselves.
Settling a divorce: In court vs. out of court
The ideal starting point is settling all matters relating to your divorce outside of the courtroom. Family law firms and the Family Court alike always encourage these types of resolutions where possible. Going down the litigation route is usually the method of last resort when divorcing couples simply cannot agree on a fair settlement and so need a judge to decide.
Here’s a breakdown of the pros and cons of settling out of court vs. taking your dispute to court.
Advantages of out-of-court divorce settlements
- Control – Staying out of court allows you to retain control over the outcome. If you go to court, you’re asking a judge to impose a legally binding ruling. Managing things between yourselves allows you to better tailor the settlement to your circumstances.
You can opt for bespoke arrangements, such as one party keeping the family home until their children finish university. It’s a level of flexibility you won’t find in court because orders are ruled strictly by hard law. - Privacy – Court hearings aren’t completely public, but there are still formal records you might prefer not to exist. Out-of-court divorce settlements preserve your privacy, allowing you to keep your personal and financial affairs firmly out of the public eye.
- Timescales – Out-of-court divorces are always faster to resolve. Most cases can be managed within a matter of months, whereas entering into court proceedings could lead to you not reaching a settlement for a year or more. Remember, the Family Court is clogged with backlogs, and there are an array of procedural stages to go through.
- Cost–Effectiveness – All divorce proceedings have costs associated with them, including seeking expert legal advice to ensure fairness. However, going to court means lengthy litigation borne by you.
- Reduced Stress – Divorce often means conflict by its very nature, but going to court only heightens the conflict. Most couples don’t want to impose this on themselves, especially if they have children. Opting for an out-of-court divorce focuses on constructive problem-solving, communication and understanding, rather than battling in front of a judge.
Disadvantages of out-of-court divorce settlements
- Co-operation – Out-of-court settlements only work when both parties are willing to cooperate. If you can’t be in the same room as your spouse, if one party won’t disclose their financial details, or negotiations just aren’t going anywhere, the only option is going to court.
- Imbalances – If there’s an existing power imbalance in the relationship, the weaker party might feel like they’ll be pressured into signing an unfair agreement. Solicitors and mediators can mitigate this, but they can’t 100% protect against it.
- Less Finality – Out-of-court settlements still require legally binding consent orders approved by the courts. Without this, there’s always the risk that future claims are made, especially if circumstances change significantly or one party receives a large inheritance. It can prevent the clean break both parties seek.
Why out-of-court divorces still need a solicitor
No law requires you to hire a solicitor to lead the divorce process, but that doesn’t mean going it alone is a good idea.
Solicitors understand family law, and that enables them to familiarise you with your rights and the concept of what’s fair. Likewise, they can offer expert advice on complex issues like childcare, property, pensions and businesses. They can also draft and file legally binding consent orders that prevent future claims.
It’s also important to mention that solicitors can take the heat out of divorce proceedings and make arguments on your behalf. That prevents you from being pressured into signing an unfair agreement.
Divorce negotiation tactics to help settle a divorce out of court
The purpose of divorce negotiations is not to “win” but to achieve a fair settlement that provides for the reasonable needs of both parties. Doing so empowers you to achieve a clean break and begin the next chapter of your life.
Tactics your solicitor will deploy include:
- Focusing on goals established before discussions begin.
- Maintaining an atmosphere of politeness and civility while refraining from personal attack.
- Enforcing complete honesty and transparency in financial disclosures.
- Practising active listening to ensure that everybody is heard.
- A willingness to compromise and find that common ground to avoid prolonging the process.
- Diffusing tensions as and when they arrive.
- Exploring creative solutions to break any impasse.
We know that divorce settlement discussions, whether solicitor or mediator-led, have the capacity to be highly combative and stressful. Working with expert divorce solicitors from the beginning equips you to stand your ground, defend your assets, and ensure a fair settlement.
If you’re ready to set the wheels in motion and achieve the fair, streamlined divorce you’re looking for, contact VM Family Law for your free consultation today.