Family Law – Dispute Resolution or Litigation – Choose the Right Option

As a family law solicitor with over 25 years of experience and a member of the Law Society Family Law Panel and Resolution Family Law Specialist in Finance and Children, I have found that most of the clients I work with tell me that they wish to achieve a solution with their former spouse/partner with all possible speed, minimum amount of fuss and expense and focus on putting the needs of their children first.  Only the minority choose to commence litigation at all costs.

In a lot of cases, clients would not turn down an opportunity to attempt Dispute Resolution such as:

1.            Family Mediation – it can assist the parties reach their own decisions by facilitating discussions and negotiations.

2.            Collaborative Law – talking things through with the help of the lawyers. It is a very pleasant way of resolving disputes and avoids a huge amount of potential conflict, benefiting the parties and their children.

3.            Round table meetings – both parties and their lawyers sit round a table to discuss and negotiate.

4.            Arbitration – recently I have also used arbitrators to adjudicate rather than waiting for a Court date which can be a long time to wait.

To succeed in dispute resolution, both parties need to keep the communication channels open, be committed to the process and aim to help their children by showing parents working together resolving issues.

For many family law practitioners, litigation reflects the vast majority of their caseload.  It is necessary to understand the principal aspects of litigation are as follows:

a.            The specific powers of the Court i.e. what specific Orders can be made in favour of a party.

b.            The principles that are applied in quantifying or ascertaining the claims of a party.

c.            The practice and procedure to be adopted in resolving those claims.

The advantage of litigation is to avoid the case from drifting.  There will be a Court timetable to manage the process.

Examples of issues that may require litigation at an early stage are:

i)             The need for interim maintenance to be applied for.

ii)            Whether there is domestic violence involved.

iii)           The immediate/short term arrangement for the children who may be suffering significant harm.

iv)           The immediate housing needs of the clients and any relevant children.

v)            The need to consider an application to prevent the dissipation of assets.

All lawyers practise the same law but not all lawyers are the same.  Many have particular skills, some are accredited specialists and some are not. Consider your circumstances, and choose the one who is right for you and your family.  The benefit of choosing a right lawyer cannot be emphasized enough.  Solutions will be so much easier to find if all concerned are taking a constructive approach advised and supported by an experienced and accredited family law practitioner.   Please email Brenda Wong Robinson at Brenda.robinson@hillmanpooley.co.uk.

Case study 1

My client is a Chinese national.  She went to a boutique London firm at first and was advised that she had to give her husband half of the value of the house which was purchased in her sole name with financial assistance from her husband.  This couple had hardly lived together after the marriage.  I advised the Section 25 factors especially the issue of financial contribution from the parties.  I advised her to make a financial proposal based on the principles of the Trust of Land and Appointment of Trustees Act 1996.  With my convincing argument, the parties reached an agreement.  It is important to note that without an Order of the Court, any settlement reached between a husband and wife is not final and binding.  Claims arising on a divorce remain live until they have been formally dismissed by way of an Order of the Court.

Case study 2

The parents who are unmarried have two children. The mother left the family home with the two children without prior notice to the father.  The mother consistently tried to evade service of the Court proceedings.  She alleged domestic violence.  At a fact finding hearing, my client was entirely exonerated from the mother’s allegation of abusive behaviour.  The Judge ordered immediate resumption of direct overnight and holiday contact between the father and the children. My client was awarded a child arrangements order to spend time with his children.

Case study 3

My client represented herself in the financial remedy proceedings up to the Financial Dispute Resolution Hearing.  Upon the assessment of her case, I advised that she should not accept the Court’s recommendation of her financial award at the Financial Dispute Resolution Hearing as the issue of spousal maintenance has not been fully considered by the Court.  I advised her to prepare the case for the contested Final Hearing by completing an updated Schedule of Assets and Liabilities from her point of view and a Section 25 statement.  At the Final Hearing, the mother received from the Court the entire equity of the family home and achieved a clean break financial settlement.

Case study 4

My client was habitually resident in Hong Kong.  His former wife and the two children of the family lived in England.  My client is a person with considerable wealth.  Experts were instructed to value the properties within the UK, Hong Kong and the Far East.  Another expert was instructed to advise on my client’s company interest, his liquidity and his ability to raise an appropriate lump sum to pay his former wife.  With the assistance of a highly experienced Counsel, we took the matter to a contested Final Hearing and achieved the result that my client wanted.

Case study 5

This was a relocation application by my client to take her child to live in Australia.  Her application was opposed by the father of the child.  My client’s aim was to take the child to Australia so that the child could start attending school there at the beginning of the spring term.  There was little time between the preparation of the case and the Final Hearing as the parties were directed to file statements and a report from an independent social worker was ordered.  An arbitrator was instructed to adjudicate the dispute between the parents rather than waiting for the Court to list the matter for a Final Hearing which could take another three to four months.

Case study 6

I represent the wife in the financial remedy proceedings. The two major assets in this case were the husband’s substantial amount of pension and the net equity in the family home.  My client wishes to remain living at the family home.  An actuary was instructed to advise on off-setting.  My client succeeded in obtaining the transfer of the family home to her sole name in addition to a percentage of the husband’s substantial pension provision by way of a pension sharing order.