For most divorce cases in the UK, the judge assigned to the proceedings will not permit the case to continue until the former couple have pursued family mediation as a first port of call. Mediation is, in brief, when an unbiased 3rd party assessor attempts to help the former couple negotiate an arrangement over any apsect in dispute [ often children issues or joint financial assets], without having to resort to formal court proceedings.
Despite this, Relate, the UK’s biggest provider of couples’ counselling, claim that mediation is still used more frequently in places like Australia and Canada, where it appears to have a long history of success, than it is here in the UK. Irrespective of the rising number of relationship therapists and family lawyers who agree that mediation is faster, less traumatic and much more economical, here in the UK we still seem to misinterpret family mediation as a form of counselling.
Relate state that the decrease in Government spending towards legal aid for divorce proceedings and mediation has also had a damaging effect. The wrong perception, that legal aid for mediation purposes can now only be accessed when domestic abuse has been a factor, has led to an acute drop in mediation since April 2013, when the new regulations were implemented.
Family law courts – getting overwhelmed
The Government reduction in legal aid spending has also resulted, as expected, in a surge of individuals opting to represent themselves in a divorce court instead of hiring a lawyer. A report from HM Revenue & Customs states that, when the same period between April to December is compared like-for-like, 46% more people decided to represent themselves in 2013 than in 2012.
The courts are being overwhelmed with litigants who are representing themselves, warn lawyers, which usually results in delays. These delays can be significant, adding months to a case. Getting divorced, in itself, can be relatively uncomplicated. The complications arise when trying to come to an agreement regarding finance and assets. It’s difficult for self-representing individuals trying to attain a financial arrangement to grasp the array of different types of settlements, or grasp the legal ramifications of the alternate options (for example, dividing pensions.)
Additional pressure has come from George Osborne lowering the time-scale of tax relief on capital gains for separated couples selling their property, from 3 years to merely 18 months. Before last year’s Autumn Statement, a separated couple (married or civil partnership) who were selling their main home would be entitled to tax relief on capital gains for 3 years after the separation. The timescale is now just 18 months.
The significance of this is that the sale of the main family property has to be finalised within just 18 months of one person leaving the marriage or civil partnership. The consequences are that, otherwise, when the person leaving decides to realise their equity, they will be confronted with a substantial tax bill.
As a means to reduce the expenditure and ramifications of possible divorce in the future, a rising number of couples are opting to have a pre-nup (a shortening of the phrase ‘prenuptial agreement’).
Romantics may state that pre-nups are cold and calculative. Supporters, however, claim that pre-nups give the couple a complete understanding of their finances; they have security regarding bequests, family trusts or children from previous marriages who are due an inheritance.
In the early 2000’s, hardly any divorce lawyers would encourage a couple to draw up a prenuptial agreement. Even now, they are still not legally binding. However, since the UK Supreme Court back in 2010 upheld the pre-nup for Katrin Radmacher, a heiress of German descent, against the claims of her spouse, Nicholas Granatino, the clout that a prenuptial agreement carries has been magnified. There seems to be a consistent rise in the number of pre-nups that are being drawn up. The call for prenuptial agreements to become fully enforceable in the courts in England and Wales has come from the Law Commission this year. By the next general election, there is a possibility that prenuptial agreements may become fully enforceable.
Regardless of the increasing or decreasing value of properties, individuals who are resistant towards mediation can expect an upsetting, complicated and ultimately costly experience.
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