If you are separating or divorcing a key issue will be how to separate your finances. This also includes considering your home, savings pensions and debts. Generally, people will say they want things to be split fairly, and to make sure the split meets the needs of you both, and any children. Easier said than done however, especially as it is not simple to agree on what is ‘fair,’ especially when feelings are running high.
One you have started some discussions going, you will probably want to consult with a solicitor to get some ideas of the legal principles used when finances are shared and split on divorce. It is quite likely that your lawyer will discuss the idea of using mediation as a way forward. This article is addressing what happens if you are able to come to an agreement in mediation.
Couples can effectively use mediation, in conjunction with legal advice, to help them find a level of agreement and joint understanding about the matter in hand. It can be about finances, or children or any other aspect of a family dispute. Mediation enables you to have a greater level of control over the negotiation process itself. The mediator is a neutral party who has the role of managing the process, including supporting your discussions, keeping matters on task and assisting if or when an impasse arises.
Mediation is not advised if there is little trust between you or issues of domestic abuse or dishonesty, including any threats of removing assets, or if there is some kind of significant power imbalance between you.
If you successfully use mediation, the result will be a written agreement identifying in detail what should happen with each of your assets and liabilities. It will also describe how pensions should be split, if at all, and maintenance and support for children going forward. It can also include other matters that you have agreed that would not necessarily have been discussed in the court process.
The mediated agreement has to go through a legal process to make it a court order and fully binding. The solicitors involved will check through the agreement, and deal with any outstanding queries that might be left over from the mediation. The mediated agreement will then be prepared in the Court format, signed and, with a short form about finances; it is sent by email to the Court or uploaded using the new Court online portal.
A Judge will consider your financial settlement as long as you have the first order in your divorce (Decree Nisi/Conditional Decree). The Judge had to decide if the deal you have reached is fair and reasonable. If so, the agreement will be approved. Once the order has been approved and sealed by the court, it is fully binding and enforceable.
The significant advantage of using mediation if it is suitable is that it moves the negotiations on quickly and smoothly, at far less cost. Your agreement is then processed through the Court as an agreed order rather than a contested case and the costs of this is far lower. You will rarely need to attend Court.
If you have any questions to ask about this article or any other articles in previous months, please contact me at [email protected].
If the Judge has queries about your agreement, they will usually email you or your solicitor and ask for some explanation or for more information
As a Judge has to approve the consent order, you do need to have an awareness of the legal principles. The judge will be considering these when looking at your order. Many mediators are also practicing family solicitors, like myself, so are well placed to give you information as to the court process.
