Focus on couples to agree separation

May 19, 2014

Married couples who agree the details of their divorce between themselves should be able to arrange their own separations with a trip to the registrar, rather than having to go to court; the most senior family judge in England and Wales, Sir James Murphy, has said.

Sir James’s comments continue a developing theme which looks to focus on couples agreeing their separation terms without the need for unnecessary legal recourse. Legislation recently introduced makes it compulsory for couples to attend mediation regarding children and finances prior to issuing proceedings. The rationale for such a move is based on reducing the time and money spent on protracted court proceedings. Secondly, and more importantly, there is a generally accepted thought that where children’s futures are decided by the parents, rather than a court, there is less negative impact on the wellbeing of said children.

For those who seek to protect their interests from the outset, there is now precedent in UK courts that prenuptial agreements are legally binding. However, the Law Commission has recommended that this only be the case after the needs of the separating couple and any children have been taken into account. In a report on the reform of matrimonial property laws, the commission calls for the introduction of standard formulas to help resolve disputes over financial settlements and publication of official guidance on what constitutes legitimate “financial needs”.

This all sounds very sensible in principal but there are some warning notes which need to be considered. With legal aid funding being cut, the country’s most senior judges have noticed a surge in unrepresented claimants, outbreaks of courtroom violence, additional litigation and increased costs. Coupled with this, the Child Support Agency has become the Child Maintenance Options and it is widely regarded that the calculations for working out how much should be paid is increasingly complex.

All in all, we are seeing a seismic change in the way divorces are managed and processed in the UK. Greater onus now falls on the couples to agree matters between themselves. However, the cautionary note should always be that ensuring the settlement is right in the first place is the only way to avoid recriminations and further issues down the line. We see many couples use solicitors for all of their case to ensure everything is done properly but we are also seeing increasing numbers of clients come to use with pre-agreed details and asking us to simply ensure everything is processed correctly. We have an open door policy at Watsons and are happy to speak to anybody looking for advice at whatever stage of the process.

Danny Hudson is a Partner at Watsons Solicitors

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