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.

Lockdown Separations – How to Move Forward Successfully

Whether there are children involved, or property and joint ownership assets, unpicking your connection with somebody you have been close to is difficult at best.

Amid the Coronavirus pandemic, this situation may feel even more fraught. Hastings and Rother have gone from a summer of the lowest cases in the country to being a hotspot for surging incidents over the winter, and this climate of tension has poured over into many of our personal lives.

In this article, the Elaine Parkes Solicitors team has drawn up some advice and guidance to help you navigate a separation during the lockdown, with the benefit of our experience of ways to smooth the transition during such a tumultuous period.

Should you need further assistance, or a professional consultation concerning divorce proceedings, Family Court issues or any aspect of separation, do get in touch with our teams in Hastings or Brighton for a private discussion about how we can help.

Five Short-term Steps for an Amicable Separation During Lockdown

Initially, we would recommend looking at what you can resolve, rather than focusing on the bigger picture.

Lockdown restrictions and tiers are reviewed in most cases every two weeks, so there is no telling whether some things, such as selling a house, may become significantly more straightforward in the weeks ahead.

Let’s take a look at the immediacy of the separation, and what actions may be possible to provide some balance and calm and ensure that the separation can begin to move forward:

1. Mortgage payments are often a significant issue in a separation, and similar concerns may apply to joint tenancies if you live in a rented property. In either case, we would advise contacting your landlord or mortgage provider. Many lenders can offer mortgage holidays, and there are options such as housing benefit, temporary accommodation and rental breaks to help you cope financially.
2. Childcare arrangements are another primary factor where you have children together. It’s best to think about this straight away to avoid confusion or worry on your children’s part. Even if just a temporary agreement about where they will stay, taking action will help restore some control if you and your ex-partner know what the arrangement will be for now.
3. Consider any social distancing impacts. If either you or your partner is self-isolating or has underlying medical issues that impact your ability to move into separate homes, you may need to think about alternatives. In some cases, there is support available, and if you do need emergency housing or are at increased risk of COVID-19 for any reason, reach out to the local authority for housing support – or give us a call. We’ll recommend the safest courses of action.
4. Apply for benefit entitlements. Benefits can range from housing to council tax relief, and there is a range of support options open to residents across East Sussex, particularly vulnerable people. A separation can be emotionally and financially draining, so it’s always wise to check what benefits you are eligible for and use that help when you need it most to tide things over until you have finalised the separation terms. For example, if you and your ex-partner live together and one of you is moving out, you can apply for single person Council Tax relief. Other benefits include Universal Credit and tax credits.
5. Think about banking arrangements – many couples have a joint account, and this practicality can be something much more manageable to remedy than might appear. Banks will have procedures in place to assist, and it’s best to act now to split out your income, savings and benefits to avoid creating a jumble of mixed finances later on.

If you’re finding the separation overwhelming, remember that these things can take time, and there needn’t be a chaotic rush to eliminate the presence of your ex-partner from your life.

By making lists and dealing with one factor at a time, you avoid adding to the inevitable stress of a separation and systematically manage those things you can deal with.

Separation Delays During the Coronavirus Pandemic

Given that much uncertainty surrounds many aspects of our lives right now, throwing a separation into the mix can feel like a lot to handle.

However, it’s worth remembering that divorce and separation proceedings can still proceed – even if some of the final details may be postponed until the Family Courts resume standard capacity.

The Elaine Parkes team can assist with any aspect of your separation agreement or divorce proceedings; there are lots of things you can do while respecting social distancing guidelines and lockdown instructions, for example:

• Divorce applications can be submitted online via an online divorce portal at any time – so there is no need to postpone the initial application.
• Some courts are closed or at reduced capacity. Therefore online applications are a faster method of beginning proceedings, and by getting your affairs in order via online and remote services in the interim, everything will be finalised quicker.

While Family Courts are open in some cases, there is likely to be a backlog over the coming months. Alongside that, if you require a divorce, there is a fixed waiting period of six weeks and one day between the Decree Nisi being granted, and the divorce petition moving onto the Decree Absolute stage where the marriage is officially dissolved.

Therefore, the best way to successfully move forward is to seek professional advice, have a clear idea of the timescales involved, and resolve any financial complications since a formal separation cannot conclude until such matters have been settled.

Considerations for Separating Couples Cohabiting During Lockdown

If you find yourself living together as a separated couple, and are unable to move due to lockdown, you can still reach some initial agreements – but it is vital to document why this situation has arisen.

In this case, please speak to our team about distinguishing your living arrangements on your statement required to apply for the Decree Nisi (the court order that confirms you are entitled to get divorced), or drawing up a Separation Agreement to lay out your respective terms and agreements.

This statement is essential, since typically where divorce is necessitated, a court will ask for information about your living arrangements, which for a separating couple usually means living apart with minimal communication.

By creating a statement that identifies why you have remained living in the same property but as a separated couple – due to limitations on movements due to localised lockdown restrictions, for example – you can avoid any unnecessary queries further on in proceedings.

Such a statement might explore factors such as:

• Eating separately.
• Being responsible for your own washing.
• Sleeping in different rooms.

For more advice with separations during a lockdown and access to resources and support to help you through this difficult period, get in touch.

The Elaine Parkes offices are based in Hastings and Brighton covering all of the surrounding areas.

You can get in touch via email or telephone to discuss your separation, with many remote and digital options available to keep things moving, even during lockdown – so that you can take control of the situation, and start working towards a fresh start and a positive future.

NO FAULT DIVORCE – IS IT TIME FOR CHANGE?

At Elaine Parkes we understand that family law matters are often highly emotive, especially where young children are involved, and require a comprehensive knowledge of the law. In 2018 a particular divorce case raised a lot of points for discussion, the main one being is it time for a no fault divorce? We have shared our thoughts and opinions on this topic.

The Family Law Act 1996, which was introduced by the Conservative government, provided the introduction of no-fault divorce in England and Wales.Last year there was a lot of discussion in the media about no-fault divorce, with the Owens case. Mrs Owens petitioned to divorce her husband of 38 years owing to his ‘unreasonable behaviour’, Mr Owens disputed this and the Trial Judge refused her divorce petition. Mrs Owens appealed the decision up to the Supreme Court. They could not help. They would not interfere with the Trial Judge’s findings (although many of us practitioners did) as he was the one to make the important decision and the lower court was applying the law as it has been since 1973.

A no-fault divorce refers to a type of divorce in which the spouse who files for divorce doesn’t have to prove any fault on the part of the other spouse.If you’re looking to divorce, you might be surprised to know that ‘no fault’ divorce doesn’t exist, unless the other person agrees after a period of 2 years’ separation or you have been apart for over 5 years, otherwise you must satisfy the court that your spouse is in the wrong. In order for a divorce to proceed, a party must prove to the Court that the marriage has irretrievably broken down. In order to do so there are currently five legal facts you can use:

• Adultery
• Unreasonable behaviour
• Desertion for over 2 years
• Two years separation with the consent of both parties
• Five years separation

Consequently, unless you can prove your partner has committed adultery or you have been separated for two years or more your only option for divorce is for you to wholly blame the other’s behaviour for the breakdown of the marriage, even if nobody is at fault and you have both agreed to separate.  This often creates conflict which sets the divorce process back, which can delay the financial aspects of the separation and could have an impact on any child arrangements.A change in the law to allow no fault divorce would help a lot of people who want to divorce amicably and without further drama. As a firm we support the campaign of Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way. Resolution have been campaigning for this for years.

If you are considering divorce, it is very important to seek legal advice. Many people often listen and talk to friends and family for advice. However, each family is unique and each divorce will be different, as it depends many different factors. At Elaine Parkes, our family law solicitors will be able to advise you on dealing with the breakdown of a marriage or civil partnership.

If you need help with family law, contact Elaine Parkes on 01424 883 183.

DEALING WITH EMOTIONS IN DIVORCE

We understand that going through divorce is known to be one of the most stressful experiences that can happen in your life. Not only are you separating from your partner, your living arrangements are going to change and there is also the consideration of finances and arrangements for children.

Our experienced family solicitors at Elaine Parkes understand that facing divorce is a very stressful time and have created some steps in order to reduce the stress.

1) Find a Good Family Solicitor

Finding a good family solicitor as soon as possible will be particularly helpful. They can go through with you at an early stage what your options are which can reduce any uncertainty you have. Our experienced family lawyers approach each case with a supportive, understanding ear, as well as having the breadth of expertise to deliver sound, effective advice on all issues that may come into play, including Property and Business Law.

 2) Reaching a settlement

Whilst ideally you’ll want to reach a settlement quickly, it should also be thorough enough so that every fine detail has been covered. Following your solicitor’s advice is important as they will be able to make a settlement that is more likely to be approved by the court. In the long term this will result in the divorce process ending a lot faster.

3) Consider mediation

As the divorce process goes on, you may find it hard to compromise on some of the more important matters such as finance, property and children. If complications do occur, it will help to get a mediator, they will help you and your partner work towards a solution that works for both of you without the need for the court to make decisions.

4) Make child arrangements a priority

Aim to resolve matters that involve children relatively quickly. If your child/children know where they stand and what is going to happen, it will help reduce their stress. If everyone agrees and has a clear understanding of what the arrangements will be, it will make the situation easier and help to reduce a drawn out court conflict.

5) Focus on long-term fairness

You should reach mutual agreement between both parties with the guidance of a family solicitor as this will be much easier to deal with in the long term. This way makes it more straightforward, allowing both parties to move on peacefully, which will reduce long-term stress.

Do you need help or advice when it comes to divorce?

If you have any questions about divorce or looking for a family solicitor, we’re here to help. Contact Elaine Parkes on 01424 883183