Divorce without Court

CHAPTER 1. THE COURT SYSTEM

The reason why family matters are not best suited to the court system is because the court system is primarily adversarial. The family court which deals with divorce and disputes over children may have different rules and procedures to the criminal courts and the county courts which deal with business disputes and those concerning contracts and personal injury, but the basis is the same. Each side spends months before the trial preparing masses of documents which must be approved, exchanged and filed, and then come to court with their witnesses to present their case and attack what is said by their opponent. A merry old fight develops, with each side doing their best to discredit the other. The judge, who is likely to be most disgruntled at the parties’ failure to agree matters between themselves, must listen to the airing of dirty washing, decide whose evidence is preferred, and then apply the law and come to a decision. It would be unusual in a fully contested case for it to have lasted less than a year from start to finish. The cost can be anybody’s guess, but lawyer’s fees are most unlikely to be under £10,000 for each warring spouse, in a fully contested divorce.

Judges, who have the unenviable task of deciding matters between divorcing couples, will have heard it all before. They are likely to be well-meaning and experienced, and will be well versed in the law. Most judges who deal with family

cases these days will have had special training. There can never be any guarantee however that they will get it right. Judges are only people and although individual experiences and beliefs should not affect a decision, different judges will decide issues in different ways. You can never be certain of the outcome. The law places a duty upon a judge to decide what is fair and equitable between divorcing couples, in all the circumstances of their case.

However, what is considered fair to one judge may not seem fair and proper in the opinion of another. There can never be any certainty to the outcome and the decision in a case when you leave it to the court to decide.

The judge’s view of what is fair will necessarily be based on some fairly brief evidence from you and your spouse on what took place between the two of you during your marriage. It is near impossible for anyone to get an accurate picture of your married life this way. The judge hearing your case will decide to divide up your family pot by some objective idea of what is fair and equitable, but there is just no way to be sure just how that will be.

Leaving the division of your hard earned family assets to be decided by a stranger who, however learned, experienced and well-intentioned, does not know you and your family is not just complicated, unpleasant and expensive. It is uncertain and takes away from you the final decision. A hard pressed judge in the time allotted cannot possibly fully understand all the intricacies surrounding your case and your marriage. The legal system can take no account of the emotional side of a divorce. It does nothing to heal the trauma and bitterness that may well be the root cause of the disagreement. Whatever the outcome of a contested legal divorce, there will be bad feeling and bitterness for years to come. It is best avoided, if at all possible.

The reason why family matters are not best suited to the court system is because the court system is primarily adversarial. The family court which deals with divorce and disputes over children may have different rules and procedures to the criminal courts and the county courts which deal with business disputes and those concerning contracts and personal injury, but the basis is the same. Each side spends months before the trial preparing masses of documents which must be approved, exchanged and filed, and then come to court with their witnesses to present their case and attack what is said by their opponent. A merry old fight develops, with each side doing their best to discredit the other. The judge, who is likely to be most disgruntled at the parties’ failure to agree matters between themselves, must listen to the airing of dirty washing, decide whose evidence is preferred, and then apply the law and come to a decision. It would be unusual in a fully contested case for it to have lasted less than a year from start to finish. The cost can be anybody’s guess, but lawyer’s fees are most unlikely to be under £10,000 for each warring spouse, in a fully contested divorce.

Judges, who have the unenviable task of deciding matters between divorcing couples, will have heard it all before. They are likely to be well-meaning and experienced, and will be well versed in the law. Most judges who deal with family cases these days will have had special training. There can never be any guarantee however that they will get it right. Judges are only people and although individual experiences and beliefs should not affect a decision, different judges will decide issues in different ways. You can never be certain of the outcome.

The law places a duty upon a judge to decide what is fair and equitable between divorcing couples, in all the circumstances of their case. However, what is considered fair to one judge may not seem fair and proper in the opinion of another. There can never be any certainty to the outcome and the decision in a case when you leave it to the court to decide.

You cannot totally avoid the courts when a marriage comes to an end. Marriage is a legal contract, and as such needs to be brought to an end by the court. This is done by issuing a petition, which simply has the effect of bringing the marriage to an end. Once a petition has been issued, the court is then empowered to make financial orders, which used to be known as ancillary orders, as they were ancillary to the application for divorce. When the spouses have been able to agree the terms of a financial order, this can then be made by consent and a consent order will be made.

The judge’s view of what is fair will necessarily be based on some fairly brief evidence from you and your spouse on what took place between the two of you during your marriage. It is near impossible for anyone to get an accurate picture of your married life this way. The judge hearing your case will decide to divide up your family pot by some objective idea of what is fair and equitable, but there is just no way to be sure just how that will be.

Leaving the division of your hard earned family assets to be decided by a stranger who, however learned, experienced and well-intentioned, does not know you and your family is not just complicated, unpleasant and expensive. It is uncertain and takes away from you the final decision. A hard pressed judge in the time allotted cannot possibly fully understand all the intricacies surrounding your case and your marriage. The legal system can take no account of the emotional side of a divorce. It does nothing to heal the trauma and bitterness that may well be the root cause of the disagreement. Whatever the outcome of a contested legal divorce, there will be bad feeling and bitterness for years to come. It is best avoided, if at all possible.