Reaching a Divorce Settlement – Private Arbitration vs Formal Court Proceedings

Divorce can feel like a daunting prospect, but it doesn’t have to be a long, drawn-out process involving costly court hearings.

The team at Elaine Parkes Solicitors works with a wide variety of clients across East and West Sussex. We always look for the best options for you, be that mediation, arbitration or something else that we feel will be a preferable resolution to enable you to move forward.

There are many benefits to considering private arbitration, not least being that the process usually provides a faster way to reach an agreement while courts remain closed or under limited capacity following the Coronavirus pandemic.

Let’s look at the difference between mediation and arbitration, and when these options are preferable to formal court proceedings.

What is the Difference Between Divorce Mediation and Arbitration?

Arbitration is a process where a couple meets with an independent Arbitrator, and works through negotiations. The Arbitrator will award a decision on any disputed issues.

Arbitrator’s Awards cannot usually be appealed. An arbitration process can be used alongside in-court proceedings if the divorcing couple has reached an impasse and needs assistance to reach a settlement.

Mediation is slightly different, in that the parties negotiate directly, and the Mediator does not have the power to make a decision.

Instead, they work with both divorcing people to reach a mutually fair decision.

Such hearings are private and can be used to negotiate the outcome of many aspects of a divorce, from financial considerations to making childcare arrangements.

Arbitrators are professionals, and usually experienced solicitors, legal executives, retired judges or barristers. You can choose which Arbitrator to appoint, which is valuable if there are specific issues that require expertise in that field.

Both divorce mediation and arbitration are usually carried out in a neutral place, such as a conference room at your solicitors’ office. Meetings can be scheduled at your convenience – rather than waiting for a court date to be assigned, which is heavily dependent on capacity and availability.

For many of our clients, the key benefit to arbitration or mediation is that it allows you to remain in better control of the process, and feels more manageable and less pressured than the formality of the court.

Most people going through a divorce try to balance the desire to have everything completed as quickly and smoothly as possible, while also making sure they reach the best outcome and achieve a fair distribution of assets – which is where these alternatives to court proceedings deliver.

Are There Advantages to Using Private Arbitration in Divorce Proceedings?

There are many different ways in which arbitration might be more appealing than a court hearing – some of the most common reasons our clients opt for arbitration include:

• Reaching a resolution faster than waiting for a court date.
• Being able to choose your Arbitrator based on your budget and any specific issues that require expert oversight.
• Control of the situation, with the ability to decide which issues the Arbitrator will rule, meaning you don’t need to cover old ground on matters which you have already agreed upon.
• Flexibility, with private meetings and scheduling appointments at your mutual convenience.
• Confidentiality, a crucial factor for many divorcing couples who do not wish private information to be publicised or reported in the media.
• Potential to save on costs – Arbitrators must, of course, be paid, but by restricting the process to those matters where you require an independent decision, you can reduce the time needed and reach outcomes more quickly.

We appreciate how tense a divorce can be, and never underestimate the need to have some elements of the process that you can stay in control of.

During a stressful period, being able to travel to our offices in Hastings or Brighton, rather than having to attend a fixed court date is often more convenient for all parties.

If you do need to attend court or require a hearing in addition to arbitration proceedings to agree on a specific point of contention, the appointed location will depend on what sort of issues are to be decided.

Usually, the Family Division of the High Court deals with matters of family law. That means being heard by a district judge in a County Court or Family Proceedings Court (a type of Magistrates Court with a speciality in family matters).

The Regional Divorce Centre covering Hastings, Brighton and much of the southeast is in Bury St Edmunds. Matters of family law relating to child custody are usually heard at Brighton County Court – although much depends on the situation and what type of issues require a court hearing.

There are options to have a Family Court hearing remotely, via video conferencing, in urgent situations – let us know if you require emergency support and we will assist you in finding the help you need.

You can find the nearest court to you by using the Gov.uk service online.

Is Private Arbitration Cheaper Than a Divorce Court Hearing?

Of the many considerations when going through a divorce, costs are always an important one.

While it may be essential to seek professional help to decide on property ownership rights or agree on how child custody is divided, it remains critical to be able to manage the financial burden associated with court hearings or legal fees.

Arbitration isn’t necessarily a cheap process, but given your ability to manage which issues are decided on by the Arbitrator, you can minimise the required time and reduce the overall costs.

Please note that you cannot get legal aid to appoint an Arbitrator, and that amount it costs depends on how long the proceedings take, where you live, and which Arbitrator you select.

However, divorce hearings can be substantially more expensive, and often run into thousands of pounds depending on the case’s complexity.

As a rough indication, a straightforward arbitration process can cost in the region of £1,000 – which you and your ex-partner will usually split as a shared expense.

The key to a successful arbitration is to appoint a professional who has sufficient experience in family law. The Elaine Parkes Solicitors teams in Hastings and Brighton can recommend outstanding local family Arbitrators, who offer flexible, efficient services to reach positive outcomes to finalise your divorce and reach a fair conclusion.

If you are interested in private arbitration or would like more information about how the process works, please get in touch. Our teams are always available to help guide you through your divorce options, with advice on the ideal proceedings for your circumstances.

Why Cohabitation Agreements are Crucial for Unmarried Partnerships

Families come in all shapes and sizes and living together as an unmarried couple, or house sharing with friends is common.

Here in the southeast, property prices continue to be among the highest in the UK, so purchasing your first home is a challenge for many people. Particularly in Brighton, shared ownership house purchases are a popular way of getting onto the property ladder.

While we’ve all heard of common law marriage, the reality is that an unmarried couple does not have the same financial rights as those in a civil partnership or marriage.

Let’s consider how cohabitation agreements work, and why they are vital to protect your interest in your home should anything happen in the future.

What are the Benefits of a Cohabitation Agreement?

Many Elaine Parkes clients seek such an agreement when deciding to buy a property, or when another life event occurs, such as having children – but there is no bad time to think about your future.

Just as people with significant personal assets might consider a prenuptial agreement, a cohabitation agreement is a ‘just in case’ provision that ensures both you and your partner have security in place.

Many complex scenarios can arise where an unmarried couple separates, and own property together:

• If you own a home together, then usually ownership will be presumed to be shared equally.
• Should a property be in the name of one partner – which is common when a couple moves in together to an existing home – that individual retains the property’s legal ownership.
• Non-legal claimants need to prove that they are entitled to a proportion of the home, and will need to file a claim under the Trusts of Land and Appointment of Trustees Act 1996. This process can be lengthy, expensive, and requires expert advice to stand a chance of being successful.
• Rights to a property where your name is not shown on the deed must be evidenced by records of financial contributions and documentation that indicates that you were considered an equal owner of the property in effect if not officially.

Claims against a property owned in the name of an ex-partner are possible. Still, a cohabitation agreement is a sure-fire way to reduce the stress, time, and inspections of your personal finances that such a claim requires.

Agreements are also valuable in a rented property scenario. They ensure that both partners agree to things such as financial obligations, and who will take over the tenancy should the relationship come to an end – particularly if only one person is named on the rental agreement.

Which Areas are Covered in a Cohabitation Agreement?

Your agreement with your partner is personal to you – and can cover a wide range of areas.

The essential factor is to discuss what you’d like to include and make joint decisions about the agreement’s provisions.

All parties must understand what the agreement means and seek independent legal advice before signing. If you are unsure about the best structure for your cohabitation agreement, do get in touch, and the Elaine Parks Solicitors team can provide guidance.

Some of the conditions of a cohabitation agreement might relate to:

• Property ownership and obligations to cover the associated mortgage or rental costs.
• Financial assets including joint bank accounts, savings and pension schemes.
• Other assets either bought while cohabiting or before the relationship.
• Arrangements for children, such as contributing to costs and living expenses.
• Who will house pets should the relationship break apart.

As you can see, a cohabitation agreement isn’t solely about your ownership rights to a property. It also covers many aspects of living together, including considerations about the rights of your next of kin.

Many partnerships also look at other safeguards, such as putting a Will in place alongside a cohabitation agreement.

Once you have a cohabitation agreement in place (which takes the form of a deed), you may need to update it should any significant events happen, such as selling a property, buying a substantial asset or having children.

Who Can Enter Into a Cohabitation Agreement?

This sort of deed isn’t solely for romantic couples that decide to live together – they are equally relevant for people who share a property in any other set of circumstances.

You can tailor your agreement as required, for example, including overseas assets, such as a holiday home, according to the law in the country where it is held.

Cohabitees who require an agreement might be:

• Individuals who share a property.
• Co-tenants of a home.
• Friends or relatives that live together.
• Co-parents who live in the same home but are not in a relationship.
• Romantic couples who are not married or in a civil partnership.
• People who rent a property together for business purposes.

Do I Have Automatic Rights to My Home if Cohabiting with an Unmarried Partner?

The reason a cohabitation agreement is crucial is that legislation is not always relevant to different living circumstances.

If one partner is named on a deed of ownership or tenancy agreement, it can take a significant amount of time to file a claim, should that relationship end.

In some cases, it can also be challenging to find evidence to show the intent of the original informal agreement. This must prove that, when you and a partner initially moved in together, your mutual understanding was that you both had the same rights to the property you shared.

Should a relationship break down be contentious, that might mean needing to submit bank statements or proof of financial transactions showing who paid the rent or mortgage payments, and which partner covered costs such as utility bills and council tax.

There is a Bill called the Cohabitation Rights Bill, which has been in circulation for several years – and had its first reading in the House of Lords back in February 2020.

In time, should the Bill be passed, it would mean that cohabitants have automatic financial protection, whether relating to cohabitants who have gone their separate ways, or when a person passes away and is survived by a cohabitant to whom they were not married or in a civil partnership with.

However, in the meantime, it remains vital for cohabiting partners to be proactive about protecting their rights and entitlements.

A cohabitation agreement is an excellent way to clarify exactly what those rights are, as a safety net for both partners.

For more information about cohabitation agreements, and what safeguards they offer, get in touch with the Elaine Parkes Solicitors team to arrange a good time to talk.