Each case will start with a meeting which will be between one and two hours in length. During that meeting we will gather information about your situation to ensure we have the necessary understanding to give properly informed advice.
Family law is discretionary and so often there will be more than one solution to your situation. Once we have as much information as possible, we will be able to give you advice, first generally on the law and how it might apply to your circumstances, and then on what sort of outcome you might expect. We will then look at what the right approach is for you to achieve that outcome.
Most cases do not go to court. At Burgess Mee we are focused on trying to resolve matters with the minimum cost and emotional expense. The processes that we look at for you are set out below and generally these options start with the least expensive and move through to the most expensive and acrimonious which will be litigation.
Financial and children matters are dealt with separately to the divorce process. The court now requires everyone to attempt non-court dispute resolution before making a court application. Mediation is a popular form of non-court dispute resolution and one we are well placed to help you with.
Mediation involves both you and your spouse or partner meeting with an independent third party, the mediator. The mediator does not advise you. Instead, the mediator provides information, empowering both of you to reach a compromise. A couple will usually have between three and five mediation sessions by which time they will know if they are going to be able to reach an agreement. In between mediation sessions you can take advice from your own independent solicitor.
Settlement discussions in mediation are “without prejudice” (which means that they cannot be referred to in court proceedings) so you have the freedom to make compromises and proposals without losing your negotiating position. Specific details about the factual matters and the level of assets are disclosable outside the mediation process though. Once you have reached an agreement in mediation, you are able to take advice on it from your respective solicitors and there may be more negotiation.
If a full agreement is reached then that agreement becomes “open” and is binding. A consent order can be drafted containing the agreement and sent to the court. In children cases there have to be ongoing proceedings to be able to file a consent order. If there are no ongoing proceedings, you can agree a parenting plan to which you will both adhere. In finance cases there do not have to be ongoing proceedings and a court application can be made with an accompanying consent order. If the judge checking the order considers that it is fair then it will be finalised by the court and is a binding court order which can then be enforced.
Sometimes mediation is not appropriate, for example, where one party feels that the other party might bully or intimidate them without the support of a legal representative.
In that case, negotiations about financial and children matters can be carried out through solicitors. We can put forward and respond to proposals in written correspondence or at a round table meeting.
At a round table meeting, you and your spouse/partner usually attend a meeting at one of your solicitor’s offices although a neutral venue may also be agreed. We will negotiate on your behalf face to face with the other solicitor. You and your spouse/partner can sit in the same room during the negotiations or you can remain in separate rooms. If an agreement can be reached, the provisions can be put into a consent order and sent to the court for approval by a judge. In children cases there have to be ongoing proceedings to be able to file a consent order. If there are no ongoing proceedings, you can agree a parenting plan to which you will both adhere. In finance cases there do not have to be ongoing proceedings and a court application can be made with an accompanying consent order. If the judge considers the agreement to be fair then it will be made into a binding court order.
Collaborative law is a form of non-court dispute resolution and can be useful when seeking to reach agreement.
In the collaborative process, both you and your spouse/partner will be represented by an independent specially-trained lawyer. You will usually sign an agreement at the outset confirming that neither of you can use your collaborative solicitors to go to court if the negotiations break down. This means there is a heavy incentive to reach an agreement otherwise you will have to change to a new solicitor if a court application has to be made.
You negotiate with your solicitors in face-to-face ‘round table’ meetings and there is a strong emphasis on working together at all times for the benefit of both you and your spouse/partner.
Increasingly, parties are instructing a “private judge” to make decisions on financial and children matters.
This could be in a private FDR (Financial Dispute Resolution) which is for finances only or a private ENE (Early Neutral Evaluation) for children matters or in arbitration (which can address the finances or any arrangements for the children).
The private FDR or ENE is a “without prejudice” hearing at which both you and your spouse/partner are usually represented by barristers and which takes place in a private office setting. You and your spouse/partner pay a barrister or solicitor to be the “private judge”. Unlike in the court system where judges are pressed for time and there are long waiting lists, a private FDR can be arranged in a matter of weeks and you are guaranteed that the private judge has had plenty of time to read the papers in full. At the private FDR or ENE the private judge hears arguments on both sides but not usually oral evidence and gives an indication of the sort of order he or she would make if this was a final hearing. You then negotiate through your barristers and solicitors that day and try to reach an agreement. If you are able to reach an agreement, this can be made into a court order.
Arbitration is like a private final hearing, which again is held at a private location. You may give evidence orally and be asked questions by each other’s barristers. The arbitrator will make a ruling (the award) and you are both bound by it. The award can then be put into the form of an order and approved by a judge.
Sometimes court is inevitable and there are separate court processes that deal with finances and children matters. These will involve a series of hearings in front of magistrates, district judges or circuit or high court judges.
In finance cases there will be some disclosure given and in children proceedings some evidence filed. The court will then encourage you to reach an agreement. If that is not successful, the case will proceed to a longer hearing at which you and your spouse/partner are likely to have to answer questions in front of a judge. This is known as a final hearing.
We will explain as the case progresses what is required to happen between each hearing and we will provide an estimate of our costs for carrying out the work. Even among those cases that go to court, most will settle before they reach a final hearing.
We will engage a barrister to act on your behalf and to give advice at any court proceedings. We will discuss who that should be and the likely costs before we engage them.
We have a specialist private wealth team at Burgess Mee. We provide advice on estate and succession planning matters, including the preparation of wills and trusts and advising on the related taxation.
We can meet with you in whichever way you prefer, to advise and take instructions. On average we will have two meetings before we are in a position to draft a will or trust documents. An initial meeting is important, taking between one to two hours. Time is spent exploring the options for a will or tax planning exercise; we always aim to progress will drafting swiftly, to ensure your wishes will be carried out on death.
Where you have come to us from our family law colleagues, we will liaise with the family team at an early stage in the divorce process. We can ascertain what steps can be taken in relation to inheritance or business succession, given you may be separating from your spouse or civil partner. It can be beneficial to review wills then and, once financial proceedings have ended, we can review or implement the estate planning options we have discussed.
We manage costs transparently and simply.
We recognise that the last thing you need is the additional financial complication of how your advice and representation will be funded. We try to make this as clear and straightforward as possible.