15th January 2024

Will I need to start court proceedings to deal with the finances on divorce?

Eri Horrocks

Senior Associate

Despite what some people may think, reputable family lawyers want to help their clients resolve matters swiftly, amicably and fairly without the need for court intervention wherever possible.

A good family lawyer should, at an early stage, help you to think about what processes might be appropriate in your case, and think carefully with you about whether court proceedings are truly necessary, or whether a non-court-based method of resolving matters is more appropriate.

There are some cases where the need for court intervention cannot be avoided, including:

Where there is a risk of non-disclosure: if it seems likely that one party will not provide full and frank disclosure of their financial circumstances, the non-court-based process is not appropriate. Reliable legal advice about the parameters of a suitable outcome in the case cannot be given without full information about the assets and circumstances of the case. If that will not be volunteered, the court’s powers of compulsion will be required to ensure it is provided.
There is a lack of engagement from the other party: non-court processes are voluntary. If one person declines to participate in any such process, or keeps delaying disclosure or negotiations, there will come a time when court proceedings will need to be started to have a binding timetable in place to ensure progress. It will always remain open to the parties to negotiate.
There is a risk of assets being dissipated: where there is a real risk that one party will dissipate assets or put them beyond the court’s reach, and they refuse to give appropriate assurances or security, it may be necessary to start court proceedings to invoke the court’s emergency powers to freeze assets. In these circumstances, action must be taken swiftly to preserve the assets for division.

Most cases, however, can be dealt with without the need for court proceedings. Family law has evolved over recent years so that there are many different voluntary processes available to help parties resolve matters outside of court, and part of a family lawyer’s role is to help their client identify which process is best for their case. Some examples are:

Mediation: where a neutral mediator facilitates discussion between the parties to explore options to reach a settlement. There are different forms of mediation such as ‘solicitor assisted’ mediation (where each party brings a solicitor to advise them during the process) and shuttle mediation (where each party is based in a separate room and the mediator moves back and forth).
Round table meetings: where the parties and their advisers all sit together and try and reach a negotiated agreement.
‘One couple, one lawyer’, also known as the Single Lawyer Model: this is where one solicitor advises both parties, supporting them in reaching a constructive solution. More details of this service at Hunters are available here.
Early neutral evaluation: where a neutral third-party expert in financial remedy law indicates what they think the appropriate outcome should be. The parties then negotiate, having heard the indication from the expert.
Arbitration: where the parties ask a specialist qualified arbitrator (often a retired judge or senior barrister) to make a binding decision about what should happen. The easiest way to understand arbitration is to think of it as a privatised version of court proceedings.

This is not an exhaustive list, and it is open to the parties to combine these processes to find the dispute resolution mechanism which is most effective for them. For example, you could agree to attend an early neutral evaluation and have an arbitrator lined up to make a binding decision if a negotiated agreement cannot be reached. In some cases, parties will agree to a voluntary exchange of financial disclosure, and then consider how best to negotiate or whether it appears that court proceedings will be needed.

Whichever process is selected, it is always sensible to keep it under review, and check that it remains a constructive tool towards reaching a solution – if not, there are plenty of other tools in the box!