The cost of Divorce

Much is being made of legal costs at the moment, with the impending removal of Public Funding for many family law cases, the start of fixed fee models and national brands undertaking legal work but, whatever the future holds, there will always be a cost for family law services and, considering the issues, complexities and future impact of the work I imagine most can understand why.

That said, in this climate costs for family law matters are a real issue and one that no doubt worries clients as much as the process of Divorce itself.

There are some steps that you can take to limit costs sensibly – by this I do not mean undertaking all of the work yourself for, although people try to do so, I find that the majority realise that whilst there might be some things that they can do themselves, marital financial negotiations or proceedings concerning children involve issues and arguments of which they are not fully aware or are ill-equipped to deal with.

Frankly, dealing with the emotional fall out of divorce and separation, day to day parenting, your job and simply functioning is probably quite enough – the following pointers, however, might just help you when it comes to limiting the costs:

1.     Write down the history

This may sound like an awful lot of work but actually it can be very helpful and will avoid lengthy meetings with your Solicitor to tell them the information. In terms of the Divorce proceedings themselves, you might be considering the option of petitioning on the basis of your spouse’s behaviour – in that case you will need to provide details of such behaviour (all of which you can set out now). At the very least, it should allow any Solicitor to advise you whether a behaviour petition is an option. In addition, when it comes to dealing with your marital finances it will be necessary for your Solicitor to know if there are any issues as regards your financial contribution towards assets, whether they were inherited or gifted, whether they were accrued from a business etc. etc.

Setting out the history – both of the relationship and the assets at the outset will ensure that you are off on the right foot. Many clients of mine tell me, having undertaken this exercise at my request, that they had forgotten things that came to mind because they were focussed on this task – much better to remember earlier on in the process!

2.     Find a Solicitor offering a free initial consultation

You should have a good choice in today’s legal market with many firms offering free initial consultations. It is important to use this time to work out whether you can work with the Solicitor, whether you like the “feel” of the firm and obtain as much advice as you can as regards your next steps.

3.     Do some of the paperwork yourself

When I referred above to clients undertaking some of the work themselves, I was referring to the more paper-based exercises – where no real legal expertise is necessary. The Divorce proceedings (by which I mean the paper-based main suit proceedings that take you from “married” to “divorced”) are a classic example.

This process is (as recently one judge put it) administrative and, whilst there are a couple of areas that you may need guidance on – the forms themselves are straightforward and designed to allow non-lawyers to complete them.

Solicitors may quote between £600-£800 + VAT for completing the forms and dealing with the process for you (liaising with the court etc.) and indeed in terms of time (assuming an hourly rate of £200 per hour) this would be about right. If you are, however, prepared to spend your own time (for which I assume you will not charge!) then you may be able to save some money in the process.

Many clients simply do not have the time or inclination to undertake the paperwork themselves and are content to instruct me to do so but I do have more clients nowadays taking the view that they would rather spend money on me negotiating their marital finances – which is a much more complex area – than form-filling – fair enough!

Solicitors may, myself included, offer a bespoke fee arrangement if you wanted to complete the forms yourself but wanted them checked by the Solicitor – which would see a reduced fee. That, it seems to me, brings you the best of both worlds.

When you come to dealing with financial negotiations – do as much of the chasing around for documentation as you can yourself. Contacting banks, credit card companies, lenders, estate agents etc. all takes time but if you can obtain the information yourself, as opposed to your Solicitor having to write out for it that will help limit your costs.

4.     Beware fixed fees

Fixed fees are fine and I do think they offer certainty and that they will become more common as we go through this year and into next.

I was always told to read the small print – probably something to do with my legal training! – this is exactly what you must do.

There is a difference between what a lawyer means by “Divorce” (the paper-process, main suit that takes you from married to divorced) and what a person on the street would understand by such a word (usually the entire thing – financial negotiations and child arrangements included).

There is nothing underhand in the fixed fee offerings by solicitors and all the ones I have seen have carefully worded small print explaining that the Court fees are extra and that financial negotiations or issues concerning children are excluded from the fee.

Just be aware that the offer might not be what you would expect on the basis of your understanding of the word “Divorce”.

5.     Consider Mediation alongside legal advice

Mediation should be discussed with you by any Solicitor and since early 2011 attendance at a Mediation Information and Assessment Meeting has been mandatory, save in excepted circumstances (for example where there is Domestic Violence etc.)

The benefit of Mediation, where parties are prepared to engage fully in the process, should not be underestimated and I have seen couples negotiate fair and sensible settlements, reduce the length of their matter and remain amicable and able to discuss issues concerning the children going forward.

The benefit in successfully negotiating a settlement through Mediation, as far as costs are concerned, is obvious in that Court proceedings will not be necessary and any work that the Solicitor needs to do following the agreement will be limited to drafting the necessary paperwork and implementation of the agreement itself.

There is a cost to Mediation sessions but when you consider the length of sessions and the ability to make decisions quickly, as both parties are present, this is still a cost effective approach.

Legal advice should always be sought alongside Mediation sessions to make sure that discussions take account of any important legal issues. If this doesn’t happen it sometimes leads to a situation in which parties consider that an agreement has been reached but in fact the agreement is unfair to one party and may not be upheld by the Court, or that party, on taking legal advice, withdraws from the “agreement”.

6.     Be pragmatic – don’t let your emotions take over

Negotiation is one area where you will see your costs rocket if you are not careful. Arguing over the principle of a matter is great but be prepared to spend money. I’m not saying that your points and arguments shouldn’t be raised but take advice from your Solicitor about the strength of your arguments – push the stronger ones (this is where trust in your Solicitor is important). Don’t lose sight of the monetary value of your arguments – if you are £5,000 apart, don’t spend the same amount arguing the toss – split the difference!

Above all know what you want to achieve – for some it will be for the paperwork and process to be taken off their hands – at whatever cost. For others it will be to limit the costs as far as possible, even if that means taking on more of the work themselves. Be honest with your Solicitor at the outset and discuss the issue of costs in detail and at the start.

The Divorce Hotel – where checking in can lead to a quick exit?

Already up and running in 6 “high-end” hotels in the Netherlands the “Divorce Hotel” concept may be making its way to our shores in early 2013 if its creator has his way.

The idea is that couples wanting to separate amicably and quickly check in on a Friday (into separate rooms!) and over the course of the weekend negotiate their marital finance settlement, children issues and Divorce with the help of mediators and lawyers, who are provided as part of the flat fee package (I shall leave aside the issues about how experienced the lawyers may be – vis a vis fitting it all into a fixed package, the choice of lawyer and whether the client can work with them etc. etc.)

I understand that 17 couples have tried this concept in the Netherlands and all but 1 have apparently been successful in their attempts to negotiate settlement and leave all but divorced at check out on the Sunday.

Also understood is that couples who apply to go to the Divorce Hotel are screened beforehand to rate their chances of success with only 1 in 3 being accepted. Taken with the reports that the creator of the concept is negotiating with television companies in the U.S to launch a reality series, the cynic in me wonders whether the screening has more to do with the perceived success of the concept than any genuine attempt to identify couples who would do more damage to each other and any children as a result of their inability to negotiate.

That aside, I wonder whether this kind of service is what the British public want or need.

I understand that the concept came about as a result of its creator having witnessed what by all accounts was the stressful and acrimonious divorce of his college friend. The driving motivation is to reduce hostility between the parties and deal with matters quickly for a fixed fee but the implication appears to be that if couples choose the more traditional route of instructing their own solicitors, they are somehow going to become more hostile and matters will be dragged out for months at a vast cost.

I am painfully aware of the perception that the general public have about the legal profession but I do think that there are a great number of family law solicitors who want to do the best for their clients and who offer an excellent service. Of course there is a cost to the service, expertise and knowledge provided by solicitors but, when you consider the often complex nature of the assets being dealt with and the fact that we are talking about people’s future security and balance that against the costs, I don’t consider those excessive.

Add to that the increasing number of fixed fee arrangements for Solicitors’ services and the availability of Mediation already on Divorce and Separation and I wonder what the Divorce Hotel is offering in addition.

Of course it offers luxury surroundings and the promise that matters will be resolved over the course of a weekend but is the luxury enough to prevent parties feeling pressured.

I know that parties make their “booking” with the best of intentions to remain amicable and reach agreement but I cannot believe that they will have really thought through every issue that is likely to be touched upon or discussed. I can’t believe that at some point relations won’t become fractured, perhaps as a result of the other raising a point that they hadn’t considered before – what then of the 48 hour timescale?

Also of concern is that parties don’t have sufficient time to process the information and think through their decisions – even traditional Mediation allows significant time to make sure that parties have advice and are able to process information. My experience of clients tells me that they, even those who have been separated for some time, are emotional about the process of Divorce or Separation and this impacts enormously on their decision making abilities.

I cannot imagine that the number of major decisions that would be needed, to deal with financial settlements and issues concerning children, could be made properly in 48 hours – irrespective of the intentions of the parties to remain amicable.

Can this be the pressure that people want on their Divorce?

Of course, it might be that the couples’ financial arrangements are simple and there are no children involved – meaning less major decisions to be made but, if that is the case, why bother with the hotel stay, why not discuss matters together or with the help of mediation services already available – why not do some of the paperwork for the Divorce yourself or with the guidance of a Solicitor to speed things up or cut costs.

I have no doubt that, as we progress through this year and into next, separating couples will be bombarded with different options and different service providers, all vying to deal with their matters – be those online services, Co-op legal services, fixed price packages (of varying quality and degree), national umbrella brands or the Divorce Hotel model.

To have options is good – no one option will suit all people – but what you must be clear on when facing such issues as Divorce and financial negotiations is your priorities and emotions. Only being aware of both will lead you down the route most appropriate for you.

Guest Spot - Warning about mis-selling

Property Protection Trusts (sometimes called Asset Protection Trusts) are designed to help people protect the value of their home and safeguard the property against any change in circumstances, such as the death of a partner or care home needs.

The Law Society and Trading Standards Watchdogs are currently concerned that these products are being mis-sold, with inaccurate promises made that the Local Authority cannot class the property as an asset when assessing care home fees, and used by unauthorised firms, who are not entitled to prepare these Trusts.

Even more concerning is the manner in which some unregulated firms appear to be approaching people, who are often elderly, with complaints being made about high pressure selling and scare tactics.

Norman Snowball says: “There are proposals to regulate Will writing and estate administration and the sooner the better but, for now, there are a number of unregulated firms offering those services. Making a Will is very important, even more so where care home fees or tax planning may be an issue. Until the changes on regulation come in, people must be extremely careful about who they ask to prepare their Will.”

Will you show your relationship the red card?

It doesn’t seem that long ago that we were cheering England on in the World Cup but with the Euros on the horizon, as well as hope that the team does better, a word of warning….

People in this country are often extremely passionate about football and the national team and that is to be commended. However, excitement, nerves, anger and disappointment – frequently fuelled by alcohol – don’t make for a good combination when it comes to relationships at home.

Often partners can totally lose their sense of perspective when it comes to such competitions, spending increased time away from their family, engrossed in games and reducing the quality of communication with their partners to a minimum.

It is widely recognised by family lawyers, police and domestic violence charities that when England plays in football tournaments, the number of incidents of domestic abuse increases dramatically.

The number of calls to helplines and the number of enquiries to Solicitors increased noticeably after the last World Cup, particularly on England’s exit from the competition.

Bear in mind also that when we speak of “domestic violence” we mean not only physical violence but psychological, emotional and sexual abuse as well.

It is a sad fact that often people cannot control their emotions or the passion that they have for sporting competitions or that they feel that it is acceptable to be a perpetrator of domestic abuse – although I’d hope the latter was rare. Sad to is the fact that many victims of domestic abuse may not recognise themselves as such or struggle on in the hope that things will change.

That said, the increased number of reported incidents after such sporting events as the World Cup suggests that either continuing abuse escalates to a point whereby the victim makes a report or that otherwise non-abusive relationships become abusive.

This year I would like to see people take time out with their partners and their family to make sure that their relationships don’t suffer and be mindful of their behaviour.

Have some insight and, if necessary, plan your time in advance – above all, put it into perspective….

However much we all want England to do well, is one competition worth the loss of a family? of a relationship?

For richer, For poorer?

For many couples in the UK, the idea of discussing a pre-nuptial agreement before their marriage is unromantic and many consider that it is tantamount to saying that the marriage is bound to fail.

In the U.S. however there are no such qualms and in many European countries couples must choose under which property regime they intend to marry and are, therefore, used to considering future asset division at the point of marriage.

With people in the UK now marrying later, and therefore being more likely to have their own properties, investments etc., pre-nuptial agreements are becoming more common.

Pre-nuptial agreements are still not legally binding on UK courts but recent case law suggests that the Courts will take into account any pre-nuptial agreement when determining the division of assets on divorce.

If couples freely enter a pre-marital agreement with a full appreciation of its implications then the Court will look to uphold those agreements, unless it would be unfair to do so. There are no absolute rules or steps that must be taken but there are certain factors that will come into play, in the event that the agreement is ever contested, such as the provision of legal advice and whether there has been financial disclosure between the parties.

In addition, for those couples who have married abroad under different property regimes, entered pre-nuptial agreements abroad or who are likely to live in different jurisdictions during the course of their marriage, specialist advice will be required as regards the status or security of those agreements, should divorce proceedings take place in the UK.

Whether a party wishes to argue against being bound by the terms of a pre-nuptial agreement or wishes to suggest that an agreement should be upheld, expert advice will be needed.

Summer Holidays – will it be a breeze or cause a storm?

Well, the weather certainly looks like it’s here and soon enough the schools will break up and children will be off for the summer.

The great British tradition of summer holidays is a happy and carefree time for many (leaving aside the eternal issues of childcare and annual leave) but it can be a time of great upset, anger and hostility for separated parents with children.

For those who could not agree when they separated on the arrangements for the children, they are likely to have a Court Order that provides for the children to spend time with each of them and, whilst no 2 Orders are the same, frequently they provide for extended or additional time over school holiday periods.

If possible, the Court will try not to be too prescriptive in the wording of the orders, after all best laid plans etc. but this means that instead the arrangements as regards dates and times are left to the parents to sort out year on year.

I can say from experience of these kinds of cases that this sometimes doesn’t work well, one party being too rigid on dates and times, dates being provided too late by one with the result that the other has already booked flights etc. etc.

The key thing to remember, and often now I insert a provision in the Order for this, is to discuss holidays at the very outset of the year and, where possible, agree the specifics early on. I know no-body likes talking about October ½ term in January but the reality is that if parents can agree dates in advance (or even some structure that rolls from year to year or alternates from year to year) it allows them also to plan in advance - to book their annual leave, budget for holidays, book flights cheaper and so on.

It amazes me still that parents who have suffered the trauma of Court proceedings to deal with arrangements for their children and have secured an Order for their trouble put off discussing holiday arrangements with the other until the last minute.

Frequently, what this achieves is further dispute, hostility and if they’re really unlucky, a return to Court to resolve the matter. A bit of forward thinking could avoid all of that.

Quite apart from advance planning, compromise and some flexibility is also essential. The fact is that commonly now parents both work – they may each have commitments to employers and other draws on their time – with some communication, it can actually be easier for both parents to manage the holiday time. Of course, the further ahead of time discussions take place the more potential for flexibility – although that does have to start as a state of mind.

With summer rapidly approaching then, my thoughts turn to those parents who are separated, with or without Court Orders, newly separated or long since divorced and I hope that arrangements for the children to spend time with each of them over the holiday period have been made already.

If that isn’t the case then discussions need to start happening now.

Avoid the disputes and bad feeling – remember, for the most part children really just want to spend time with each of their parents and enjoy that time.

Breaking up is so hard to do......or accept

In this recently reported case the husband, Peter Savva, appealed the grant of the “Decree Nisi”, which had been granted – the Court having considered matters and judged that there was an entitlement to the Divorce on the grounds put forward by the wife, who had been the one to petition.

Mr Savva’s position was, whilst accepting that the marriage had temporarily broken down, that his wife had suffered some sort of mental breakdown or was confused or, in the alternative, that she was being unduly influenced by her solicitors, her mother and others and that the marriage had not permanently broken down.

Mr Savva even went as far as to say that his wife lacked the capacity to instruct her solicitors and asked the Court to order psychiatric testing.

Lady Justice Black rejected the arguments put forward by the husband and said that Mrs Savva stuck her as being “upright, honest and, not surprisingly, fed up with all that has been going on”. Lady Justice Black confirmed that in her view the husband was finding “all of this very difficult” and was struggling and “reaches out for any excuse other than the truth”.

The Court endorsed an earlier judgement in the case that the matter was “very sad” and I would certainly second that.

I would say that the lengths to which Mr Savva went are unusual – I expect that there are a significant number of people who are less than accepting that a divorce is the right course of action or even shocked that their spouse wants one but not everyone ends up in the Court of Appeal!

This case does, however, highlight, the difficulty that there can be when one party doesn’t necessarily want the Divorce to go ahead or considers that there hasn’t been an irretrievable breakdown of the marriage.

In England and Wales the only ground for divorce is that there has been an irretrievable breakdown of the marriage and this must then be based on one of several “facts”.

A divorce may be progressed without the other party’s consent or acceptance, for example, if the person petitioning considers the other’s behaviour to have been unreasonable, for which no proof or admittance of the behaviour is necessary. This is one of the most common facts upon which petitions are issued and means that a Divorce petition can be issued immediately upon separation – allowing the other party little time to get used to the idea or reach any level of acceptance.

Mr Savva has indicated his intention to seek judicial review of the process of divorce in England and Wales and considered that Mrs Savva should have been made to go through a“cooling off” period before commencing the divorce proceedings.

I do not agree that in all circumstances this is appropriate – for example when divorce proceedings are needed urgently because there is some pressing issue as regards the marital finances but there are several countries around the world whose procedures encompass some waiting time.

In Sweden, couples can file for divorce together or one party can file alone. If they have children under 16 living at home or one party does not wish to get divorced there is a required contemplation period of 6 to 12 months.

In Malta, who only had legislation introducing divorce in October 2011, the parties must have been separated for 4 years from the last 5 and there must be sufficient arrangements as regards maintenance. The requirement of separation for 4 out of the preceding 5 years is the same in the Republic of Ireland.

In the U.S, where no-fault divorces are common, most states still require a 1-2 year period of separation before proceedings can be commenced.

The reality is, despite these different procedures, that if one party wishes to separate, there is nothing that the other party can do – an obliged period of separation before divorce at least provides time for the party being left to come to some level of acceptance but it does also prevent both sides from moving on.

Far better, in my view, for parties to speak with each other before one takes action – not necessarily to achieve any reconciliation (although if that is a possibility divorce should be furthest from anyone’s mind) – but to discuss their respective feelings and needs so that the process, as administrative as it may be, can be approached on a timescale (ideally) appropriate to both sides.

Leaving aside cases where there is domestic violence (when some thought needs to be given to the timing and arrangements for any such discussion) the first thing that a spouse knows about divorce should not be receiving the papers through the post, no matter how uncomfortable that discussion is going to be.