I recently wrote a piece about Mediation and how it works. Afterwards it occurred to me my piece could have been interpreted as feeding one of the main myths surrounding the court process, namely that it should be avoided at all costs. The reality is that it has a place in divorce and can often be a better option than the more lauded Alternative Dispute Resolution alternatives.
I want then, in this piece, to debunk some of those myths around court and court proceedings.
We should do everything to avoid ending up in court –
Not necessarily. The benefit of the court process is that it has a set timetable and working within this framework can actually save time, and therefore costs, in finding a resolution.
For example, desperately seeking to avoid court proceedings can often lead to matters dragging on, and costs racking up, with little progress being made. The lack of a formal timetable enables an errant party to delay, prevaricate, and obstruct the resolution of the matters, if they feel that doing so can give them an advantage. Court proceedings help to manage cases as well as bringing a party into line, and ensuring a matter is kept on track.
A court application can provide much needed direction and focus where it may otherwise be lacking, such as where disagreements over the minutiae may prevent the parties from looking at the bigger picture. It benefits from judicial intervention to provide assistance and indications which can focus the minds of those who unreasonably expect a better settlement than they are entitled to.
Going to court is going to cost a fortune – Again, not necessarily true. There is always a fee to start court proceedings, whether to resolve a financial dispute on divorce or to agree arrangements for children. The other costs involved are purely down to the time your solicitor is required to spend on your matter.
Beginning court proceedings does not have to mean thousands and thousands of pounds in legal costs. Costs can, and should, be carefully managed and the client is the driving factor with ultimate control over that.
I lose control of my own matter once it goes to court – No, you don’t. Working within the framework of court proceedings is designed to do three things:
firstly, to provide all the necessary information to assist your solicitors to advise you;
secondly, to ensure the process is managed and streamlined to limit the matters in dispute and therefore the costs involved;
thirdly, to give the court all necessary information it needs to make a decision if you can’t.
The court process has a number of hearings designed to narrow the issues and to give every opportunity for a resolution with the assistance of a judge. Only when those options have been exhausted, and there remains no resolution to be found, will the court will make a decision because it has to. I personally view every attendance at court as an opportunity to negotiate a resolution and bring matters to a conclusion.
It is also worthy of comment on an additional myth I often hear, namely that because court proceedings have started the parties cannot negotiate and have to leave it up to the court. This is not true at all. If anything the court process should encourage more negotiation because both parties know that if they cannot reach an agreement, then a court will ultimately make a decision that they will have to live with.
Family Court promotes confrontation – While it is true to say that tensions can be magnified when at court, I believe much of this is down to fear of the unknown. Most people will, pleasingly, not have to experience a court or a court room, or appear before a judge. That anxiety heightens emotions which, as we all know, can cause us to act strangely. The ‘fight or flight’ reaction is regularly apparent at most courts I have attended and this, unfortunately, can lead to hostility and leading to confrontation as a defence mechanism.
Having skilled and experienced representation is a must. Not only will we help to calm your nerves and anxieties, but we are used to dealing with the environment and we ensure that the important points of your case are addressed; your case is put forward accurately and succinctly; and time is not wasted on details which will ultimate distract from the main reason to be there – which is resolution.
Will I have to speak to the other party or the judge? Often no you won’t. That is what we are there to do for you.
Occasionally judges may direct a question to you, if they want more specific insight on something and think that you can give it personally rather than it being relayed by a third party, but it is rare.
If all other opportunities to settle a matter have been exhausted and a Final Hearing is needed, you will be required to give evidence and will be asked questions (cross-examined) as part of the process which aids the judge in making his/her decision. Again, Final Hearings are rare because of the way in which the process is set up given the many opportunities that exist to promote a resolution before the Final Hearing stage.
The court/law will favour X or Y – I commonly refer to this myth/perception as ‘bar room law’; where a party has been talking to their friends/colleagues/acquaintances about their problems (usually in the pub hence the reference) and they are told that when XYZ got divorced “they lost everything”.
This type of comment, and the perception it then breeds, angers me for so many reasons because often it leads, seamlessly, to the following unhelpful (and untrue) comment that “it cost everything they had too, in lawyer’s fees”.
The reality is that the law/court does not favour one party or the other.
The perception that it does is usually because the true facts of a particular matter are not readily portrayed, or known, along with a lack of knowledge and understanding of the reasons behind why a decision is made. The media are equally as culpable with the often sensationalised reporting of high profile divorce matters.
Most lay people, naturally, are unaware of the existence of the Matrimonial Causes Act 1973, nor particularly of section 25, which for years now has shaped how courts (and subsequently us as solicitors) apply the wording of the section when making a decision, or advising clients, on how a financial dispute will be settled.
In a nutshell this guides us to consider, firstly, the welfare of a child who has not yet reached the age of 18. There are then other factors such as the income, earning capacity, property, and other financial resources each party has, or is likely to have in the future, as well as the financial needs, obligations, and responsibilities each of the parties has or is likely to have, which are also to be considered.
I will explore this in more detail in a further blog, where I will consider and explain how equality does not always mean 50/50, because I am conscious this one has already gone on longer than I anticipated!
If you would like to get in touch to find out more about the courts or to ask my advice on your situation, please send me an email or call 01608 686590 and ask for Ian Davies. I’ll be pleased to arrange a time to meet you in Brailes, Banbury or Bicester.