Contested divorce


In the event that both parties are unable to agree on certain issues, there are options available. These include mediation, arbitration and in extreme cases a trial/lawsuit. All are means to resolving disputes, but should be used only when it is absolutely not possible to reach an agreement between yourselves.

Mediation

Mediation is an alternative dispute resolution sought by the parties when they are unable to resolve an issue between themselves. The mediator is neutral and a professional in their field, who will assist the divorcing parties in negotiating a settlement regarding the contested issue.

It is important to note that what you agree on in mediation is not legally binding unless you get a solicitor to draft a consent order, so that it has a court’s approval and could be enforced by them if need be. Although mediation is often considered to have concrete effects, it is not always the direct or absolute solution to a dispute that people expect it to be, so the following points may help before committing to it.

Factors to consider:
  • both parties should be willing and committed to participating in all meetings;
  • both parties should give consideration to whether they will require the consent order or not;
  • both should be able to contribute their ideas regarding where any children will live and how often they will see the other parent;
  • both parties will need to provide truthful information regarding their living arrangements and wishes for dividing up property and finance.
Relationship counselling

Mediation has at times mistakenly been thought of as a route that couples go down to discuss their marriage and whether any reconciliation is possible. This is a common misinterpretation, but it is worth differentiating relationship counselling in this regard. Relationship counselling allows both parties to seek counsel, that is help and advice, from professionals offering such services. Relationship counselling can help repair broken parts of a relationship and take couples onto a new chapter in their relationship so is certainly worth further consideration if you are unsure as to whether you actually want to divorce.

Arbitration

In the case that you have sought help through mediation but are still at odds regarding certain areas of the divorce, you may turn to arbitration. This is another process used to resolve disputes between the parties divorcing.

After all, mediators do not have the power to sanction a legal decision. Their role is purely advisory and consultative. On the other hand, an arbitrator has similar powers to a judge in court – the arbitrator is able to make a final decision based on the information and evidence presented to him/her regarding the dispute – only the process takes place outside of court in a private setting agreed upon between the two parties. This final decision is sometimes called an award to one of the parties.

Using an arbitrator comes at significant cost to both parties, not least because it requires you to have an attorney or lawyer present throughout, but you must also follow judicial processes to getting an arbitration hearing and ultimate decision.

Factors to consider when using arbitration:
  • deciding together on who will deal with the case,
  • filing and submitting the relevant files and evidence for arbitration,
  • ensuring you are aware of the expenses involved in using an arbitrator.

Trial/Lawsuit

If the dispute is taken to court, this is normally for a trial or lawsuit. Like with arbitration, based on the arguments and evidence presented, the court will come to a final decision, a ruling or order for a certain outcome.

A trial/lawsuit is akin to arbitration insofar as it entails each party and their legal team preparing their arguments and evidence – only this time it is heard before an official (district) judge instead of an arbitrator. Unlike mediation, the judge’s final decision is legally binding.

Examples of court rulings or orders:
Financial order A judge may force one party to sign over property or other finances to the other;
Child arrangement order A judge can rule regarding the care and provision of any children involved, replacing the traditional contact and residence orders;
Term order A judge can rule for how long certain maintenance payments will be paid;
Cost order A judge can order one spouse to pay the legal expenses of the other, depending on circumstances

Generally, the more complicated the areas of the divorce being contested, the more expensive it will be and the longer the divorce case will take. This is particularly true if assets such as whole companies or trusts are involved. Going to court can be a seriously distressing time for all concerned and really should be a last resort dispute resolution, only pursued in the event that there is absolutely no hope of negotiating a fair post-divorce settlement by other means.


Domestic abuse

Notwithstanding, if you are the subject of domestic violence and abuse, you are encouraged to do whatever necessary to have your case heard before a judge. Domestic violence and abuse should undoubtedly be accountable to the law, so any party would be best placed by reporting such behaviour when filing for a divorce.