Legal advice for marriage breakdown in Scotland
There is no doubt that separation and divorce are unpleasant events (to say the least) for any family and they can signal the start of a difficult and stressful time for all involved.
While some separations are very amicable and straightforward, disputes arise in family situations from time to time and naturally when a couple decides to separate. Normally, couples need to resolve issues such as the division of assets, the responsibility for debts, financial support and arrangements for children. If a dispute does arise, it’s worth knowing the options open to you.
Do I need legal advice?
Often, couples can resolve disputes themselves by direct discussion or negotiations through a third party such as a family member. But if the dispute involves a significant amount of money or assets, it is probably a good idea for both parties to take legal advice even if they can reach an agreement without the involvement of solicitors.
This means that they are at least aware of what their legal position is. When an agreement is reached, it is normally a good idea to put it in writing and to have solicitors draft a document to this effect. That can then be signed and registered. This means the agreement is not open to later misinterpretation.
What is mediation?
Sometimes direct discussion isn’t possible or an agreement can’t be reached this way. In these circumstances, mediation is a popular option for many families. Mediation means that parties discuss the dispute with the help of a trained mediator. A mediator is a neutral party who won’t take sides or give legal advice. Their role is to guide the parties toward a constructive solution.
Though often effective, mediation is only likely to succeed if both parties are genuinely interested in reaching a settlement. At Gibson Kerr, we have had some very successful mediations where couples have been encouraged to discuss the issues calmly, without assigning blame and in a constructive atmosphere. This can be key to arriving at a solution.
Collaborative process
If mediation is not wanted or doesn’t result in a solution, then a more formal method of dispute resolution will be needed. If both parties have engaged solicitors who are trained in collaborative practice, then a collaborative process can be undertaken.
A collaborative process involves four people (the two parties and their solicitors) working together to try to find a solution to the dispute. Typically, the four parties would have a series of meetings.
Firstly, they would identify the matters in dispute. This would require information such as valuations of properties or redemption statements of outstanding mortgages.
Sometimes a neutral financial advisor will be brought into the process to answer questions of a financial nature. The collaborative process can be an effective way for separating couples to reach an agreement, without going to court.
Arbitration
However, if no agreement is reached, another option to be considered is arbitration. Arbitration is similar to court proceedings. However, it is different in that the parties themselves choose the arbitrator who will decide on their case.
They will typically appoint an arbitrator and give them full details of the dispute. The arbitrator will require a clear remit of what the dispute is and what is to be decided by him/her. This can be done by written submissions or through a hearing where both parties can give evidence to the arbitrator or can at least make oral submissions.
The advantage of this process is that a decision will be given. Before embarking on arbitration, the parties will agree that the decision will be binding.
When might you have to go to court?
Although usually a last resort, an alternative to the arbitration route is court proceedings. The main advantage of this process is that a decision will be made that will be enforceable.
However, court proceedings can be lengthy and to some extent, the parties involved aren’t in control of the timescales, the identity of the judge, or the process. Court proceedings progress within a strict framework of the procedure so it is predictable. However, any hearings that are fixed have to fit in with the court timetable and there can be a significant delay in securing dates for a hearing. Court proceedings are also expensive.
Speak to the experts
At Gibson Kerr, we understand that every family is different. There is no one best option for all disputes and each needs to be considered on its own. You should discuss with your solicitor which method is likely to be most successful in your particular circumstances.
If you want to talk to one of our experienced and friendly family law solicitors to discuss dispute resolution in relation to a family dispute, please contact us at [email protected] or by telephone on 0131 226 9161.