Divorce and dissolution represent periods in people’s lives when they face many fundamental changes.
The cost of that process is very often a factor that must be considered carefully at the outset, not least when the separation is difficult and does not involve agreement with the other spouse. There are a number of options available to a person in this situation and this article gives some guidance on where to turn if you do not have a pot of cash immediately available to fund your divorce or dissolution.
Dealing first with the divorce or dissolution, to take the approach promoted by the organisation Resolution, is likely to limit disagreement, pave the way for amicable planning of the process and ultimately limit legal costs for all. All of the lawyers in our Family Law team are active members of Resolution and have committed to adhering to the Resolution Code of Practice.
If it is possible to agree the way forward in the divorce or dissolution, making the process less uncertain, it is possible that the cost of the exercise can be dealt with by a fixed fee.
Within the divorce or dissolution application, there is scope to ask the court to order your spouse to pay your divorce costs back to you. The rationale is that if the breakdown of your marriage is not your fault, you should not be left to pay for the divorce or dissolution. However, it is important to consider the effect of this on maintaining a meaningful dialogue in negotiations. It is often more appropriate to agree with a spouse and their lawyers that the costs of the divorce be shared in some way. This is both fairer and more likely to foster constructive financial negotiations later.
When embarking on negotiations to resolve financial matters in a divorce or dissolution, it is important to discuss carefully with your lawyer the effect of the various approaches on the costs that will be incurred. Invariably, the all-guns-blazing approach will incur the most costs by removing any scope for compromise and agreement. Sometimes of course, there is little option. Usually, there is.
Mediation means entering into a constructive dialogue via a mediator to explore an agreed solution to financial matters. This will often be a cost effective option. It can avoid difficult legal negotiations altogether, by providing a neutral focus for discussion and agreement.
Arbitration too, which seeks to tackle difficult issues in a non-confrontational and controlled fashion, can enable easier budgeting of legal fees.
Negotiating financial affairs through solicitors often represents the most common form of financial dispute resolution and with an engaging, open and efficient approach, legal fees can be limited compared to a piecemeal, confrontational approach.
Whether financial negotiations are dealt with through solicitors or subsequently through the Family Courts, legal fees will be a major consideration. There are several options to consider in facilitating the funding of the process.
Financial negotiations need to take into account all aspects of people’s financial circumstances and this includes their liabilities and debts, as well as those they expect to incur. Legal fees will form part of this. Whether by private bank loan, credit card or money borrowed from friends or family, the sums need to be factored in.
In the absence of formal or informal borrowing and with the near demise of Legal Aid, some may feel that they have no funding alternative. As a result, many people then find themselves as litigants in person – tackling court proceedings or legal negotiations without legal advice or representation. This can be emotionally exhausting and very daunting. It can lead to prolonged proceedings and increased expense for the other spouse, meaning that there is less available to share.
Legal representation is not an all or nothing facility. Pinney Talfourd are happy to assist clients in fixed fee appointments to advise and guide as they deal with matter themselves. This can be an excellent means of ensuring that negotiations remain fair. Specific tasks can also be carried out on fixed fees, such as the preparation of court documents including Questionnaires and Position Statements and checking over documents received from the other spouse and their own solicitors.
If negotiations involve the distribution of property and the immediate issue is lack of funds in the interim, it may be possible to reach an arrangement with your solicitor’s firm called a Sears Tooth Agreement. Such agreements formalise legal fees being recovered at the end of the case from the proceeds of sale of property in dispute.
In other cases, parties may find it more convenient or appropriate to take advantage of litigation funding from companies such as Iceberg (who work in partnership with Resolution) and Novitas and several other legal funding organisations. They recover costs at the end of cases and lend money to pay for legal fees throughout cases. This liability can of course be taken into consideration in financial negotiations, to avoid undue disadvantage to the borrower.
Within legal proceedings, when funds are limited, it may be possible to instruct a barrister to represent you at court by approaching them directly. It is usual for barristers to be instructed and briefed by your solicitor. However, some barristers can be instructed on the Direct Access Scheme, meaning that it is possible to instruct a solicitor just to deal with specific aspects of a case on fixed fees, and to instruct a barrister directly to provide representation at court.
Lastly, and in rare situations, it may be possible to recover some or all of your legal costs from your spouse, if their behaviour has been so dishonest that it has impacted upon the money available to distribute. In these circumstances the Court can consider costs claims and penalise a party appropriately.
It is important to consider all possible options when the funding of legal negotiations is a particular concern. Pinney Talfourd has an experienced and dedicated team of specialist family lawyers based in our offices across Essex and London who can discuss your financing options.
We have evening and weekend appointments available and offer a free initial 30-minute consultation for all new family law enquiries. You can book your free initial family consultation using our online booking form or by calling your local office. This half-hour appointment will allow you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.