New divorce study shows solicitors still lead the way in settling disputes

New divorce study shows solicitors still lead the way in settling disputes

A recent study carried out by Emma Hitchings, Joanna Miles and Hilary Woodward analysed 400 court files from all over the country.

Their study confirmed that almost all cases are settled before any final adjudication by a judge (only about 5% actually reached that stage).

Of the 400 divorce cases, 65% were settled before any type of court proceedings were issued.  30% were settled after proceedings were issued and before final hearing, and the balance of 5% was decided by a judge.

What this means is that in cases where proceedings are issued, 85% of those cases are settled before a final hearing but 15% are decided by a judge.

The study dealt with cases between 2010 and 2012, and was carried out before the changes that led to the general withdrawal of legal aid for such disputes. It will be interesting to see with the rise in the number of people who are representing themselves (because of the withdrawal of legal aid) how these numbers will change in the future. I’m sure they will and that the number of cases that have to be decided by a judge will increase.

A further finding of the survey was that the issue of proceedings was a helpful tool in helping the negotiation process.  As was so ably set out by one solicitor who was interviewed:

“If we do court, it doesn’t mean you have to have a final hearing. We can negotiate, we have a twin track approach and I am a great supporter of the timetable structure that you get from the court system – it’s really helpful.”

I fully agree with the sentiment expressed by that solicitor.  Just because court proceedings have been issued it doesn’t mean that negotiations stop.  In reality, the amount of negotiation increases and the chances of settlement for divorce also increase.

My personal experience is that if one can’t, after full financial disclosure has been made, quickly negotiate a settlement then it’s better to issue financial proceedings than to continue to negotiate ad nauseam.  Contrary to popular belief, solicitors are very ready to help with negotiation and have no interest in continuing with litigation if it can be avoided.

The study’s finding confirms this view.  Even in cases where a Consent Order was filed before the issue of proceedings, 60% of those has been settled after lawyer-led negotiation.  Informal discussion between the parties accounted for the settling of the vast majority of other cases. Although family mediation and collaborative law also played a part.

This interesting survey went on to analyse the reasons why settlement was not achieved.  The main reasons for not achieving settlement were found to be:

  1. The parties were still emotionally embroiled in the relationship
  2. The children were being used as a weapon, and the disputes about children clouding financial aspects
  3. There were third parties who were interfering in the process (e.g. other family members)
  4. One or other party choosing not to engage in discussions

It has always been my personal point of view that every case settles. But some people want the settlement to be decided for them by a judge. In truth, when one reaches the doors of a final court hearing, the actual issues have usually been narrowed down and the choices that the judge is going to make are between recognised and usually narrow parameters.

Sometimes one does have to engage in a dispute because of those who try to hide assets or otherwise decide not to tell the truth. But usually it’s the case that settlement is the better option rather than deciding to let a judge tell you what’s going to happen whether you like it or not.

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