Many may not want a separation like Gwyneth Paltrow and Chris Martin, but what is certain is that divorce does not have to be so destructive that those involved are left emotionally shattered. There are several non-contentious routes for an amicable divorce that parties can adopt to minimise the impact of marriage breakdown. Provided both parties agree that the marriage has irretrievably broken down and they are happy that the divorce takes place in the chosen country, then the divorce itself can usually be a straightforward paper application.
Sophie Capo-Bianco, solicitor at Expatriate Law, summarises various options for separating couples to resolve matters with dignity.
The issue that can cause difficulty and hostility is negotiating the matrimonial finances. Following an amicable divorce, to ensure that the associated financial issues are resolved swiftly, it is essential that both parties are reasonable and open within financial negotiations. They need to be willing to reach a settlement which is fair and meets everyone’s needs especially those of the children. Both parties are entitled to request full and frank financial disclosure from each other and it is imperative that they are cooperative and fully engaged in the process. It is particular important where there are children involved as parties must remember that they will have to co-parent together until their youngest child is at least 18 years old, therefore by dragging their heels or burying their head in the sand will only cause tension at handovers which the children will inevitably pick up on.
There are several ways that parties can reach a financial settlement without having to issue protracted, expensive court proceedings:
1. Negotiating on their own
If there is still trust and goodwill between the parties then they can conduct the negotiations between themselves. The parties can then obtain independent legal advice from a solicitor who can draft a consent order to make the settlement legally binding. This is the most cost effective process.
If the parties are struggling to reach a financial settlement between themselves then they can instruct a solicitor to assist them. Where the extent of the matrimonial pot is uncertain, solicitors will usually advise clients to exchange full financial disclosure. Each party will have to complete a Form E and provide supporting financial documentation such as the last 12 months bank statements for all accounts, property valuations, mortgage statements, evidence of values of investment and pensions, pay slips and so on. Once a settlement has been reached, a solicitor can draft a consent order and lodge the agreement at court to make it legally binding.
A mediator is an independent third party who will try and assist the parties in reaching an agreement. The mediator will be neutral and will not take sides. The discussions will be confidential but they are not legally binding. Any agreement reached through mediation can be drafted in to a consent order by solicitors, to then be lodged with the court for approval and sealing. Whether communications have entirely broken down, or whether a separating couple can discuss matters amicably, mediation is a highly effective method of settling matters promptly and effectively.
This process is still a fairly new concept and it is not yet widely used; however it can be extremely effective as it gives a legally enforceable decision and the parties do not have the stress, cost and time of going through court proceedings.
An arbitrator is a qualified legal professional who will hear each party’s position and make a decision known as an “award”. This process can be conducted in person, over the phone or in writing and the dealings between the parties and the arbitrator are completely private.
The advantage of arbitration for expatriate couples living in the UAE is that the process does not require them to attend court, and also any resulting arbitrated award is enforceable in the UAE. This is not always the case for English court orders.
5. Collaborative Law
Historically, this has been known as a non-confrontational route in the divorce process. The parties will sit round a table with their clients to try and resolve the outstanding issues. Everyone signs an agreement on how they will conduct themselves in the process, i.e. openness, fair mindedness and with integrity. There is also a clause in the agreement that if the collaborative process breaks down then the parties cannot use their current solicitors if they issue court proceedings which can help to act as a deterrent to go to court.
Court is always considered to the last resort and sadly there are situations where the parties reach a “stale mate” situation and the only way forward is to go to court. Nevertheless, provided the parties are able to move forward in a sensible and pragmatic way, an amicable divorce and the associated issues can be concluded in a time efficient and cost effective manner.