Divorce Without Pain ©: the concept



Hello, and a warm welcome to 'Divorce Without Pain'. I am Stephen Twist, an English barrister, mediator and arbitrator living and working in the north of England.

Over the past 30 years, I have specialised in family disputes. Some involve expensive financial conflicts; others relate to how children will divide their time between separated parents.

Back in 1999, having just completed training as a CEDR facilitator, it occurred to me that there had to be a better and less expensive way of dealing with these type of disputes than having two solicitors fighting in court. A court battle was a blunt tool, with which parties knocked bits off each other, and the court process compounded the damage. If parties weren't at war before they started, they were certainly polarised by fighting the case.

So, this is why 'Divorce Without Pain' came about. We decided to set up a service to save wives, husbands, partners, mothers, fathers and grandparents from the worst aspects of the family law system. Our aim was to guide them carefully and jointly through a process designed to result in a separation agreement.

Well, does it work? Clients start the process saying "We can never agree on anything", and "he/she is so controlling and unreasonable that we really need a judge to decide" - only to find that through sensitive management, a workable settlement is achieved. The process also saves you the considerable expense of separate lawyers and the time and stress taken in fighting the case.

This is now what we are doing through 'Divorce Without Pain'. The Bar Council was keen for it to be developed. So here it is! In following blog entries I will describe how it works. If any reader would like to get in touch, do leave a comment below or contact me at divorcewithoutpain@gmail.com.

'Divorce Without Pain ' : The Model

What we do?
We assist you with all of the issues that arise from separation, divorce or the breakdown of civil partnership: financial arrangements, arrangements for the children and wider planning arrangements for the family.

Put simply, we facilitate a settlement of your dispute, similar to going to court, but at a fraction of the cost, in a fraction of the time, and with a fraction of the stress.

Divorce Without Pain provides a bespoke service based on simple modules. This way, you control what you spend.

We facilitate:
  • financial arrangements following divorce, partnership breakdown, and probate issues - sorting out what will happen to the home, property and other assets - and dealing with maintenance.
  • arrangements for children, including where a child will live, and contact arrangements for parents and grandparents.

Who we are?

We are a group of specialist legal and facilitation practitioners who have worked closely with the family courts. We are all accredited facilitators / arbitrators and work as a co-operative. Most of us have worked as barristers or solicitors.

How we work?

We work in partnership with both of you. Each referral gets a 'designated guide', who will guide you both. Your guide will come up with practical ideas which generally result in agreement on most, if not all issues. We are known to, and trusted by the courts and work hand-in-hand with them.


  • We offer a cost-free, unhurried telephone conversation about your case. This is to give you information about 'the DWP Co-Operative', discuss what you are seeking and how we can help you, and to point you in the right direction for further help, or to arrange a meeting with you.
  • At the first meetings with each of you (usually separately), we record all the facts about your case, and check to see that all parties are happy to engage with DWP. Here, each of you tell us in detail about the problems as you see them, and we can identify the options to move things on.
  • Once the facilitator has all of the facts, we ensure that information is shared and that you are both on an equal footing. At this point we will identify the detailed options specific to your needs and wishes.
  • We aim to bring about a settlement with which you are both content. If this is achievable, we will set out the agreement in a settlement document which can be filed with the court if you wish, or simply retained as a binding agreement of your dispute, bringing the case to an end.
  • If we haven't been able to get to an agreement, we arrange a joint meeting where the facilitator (usually supported by a co-facilitator) works with you together and separately throughout the day towards a settlement. Here we are over 80% successful in reaching agreements. The agreement will be prepared and signed by you before leaving.
  • The courts will uphold your agreement unless there are exceptional circumstances to depart from it (see S v S (2014) EWHC Fam).

Why use Divorce Without Pain?

  • The courts want you to use this process and have endorsed the scheme.
  • We work with your solicitors if you have one, or can deal you on your own without a solicitor if you wish. This way you control what you spend.
  • We work with both parties to focus on 'court-type settlements'. We minimise conflict.
  • You have the service of a single, experienced, dedicated, fair and impartial practitioner who stays with you both throughout the process.
  • We do not charge hourly rates. Pricing is in simple, transparent modules. We contain rather than maintain cost.
  • We work towards the type of compromise that best meets your needs in a way the court will approve.
  • Our facilitation meeting generally takes place on one day (using the commercial model), as opposed to a 'drip feed' series of meetings over several weeks.
  • Where settlement of all of the issues is not possible, we offer the chance of a binding private arbitration of outstanding issues.

Family Finance Modules : a guide                       

We help you to make sensible financial arrangements following separation, divorce or partnership breakdown. With over 30 years of experience of court outcomes we will guide you to a settlement that the courts will approve, should you wish this.

Module 1

·         Individual telephone contact with each of you separately;
·         Individual meetings with each of you;
·         Preparation of chronologies, asset schedules, and position statements;
·         Guidance on reaching agreement on assets;
·         Preparation of joint outline of issues - or settlement agreement if you can agree.

Module 2 - if you have not settled in Module 1

·     A full day facilitated meeting with both of you (together or separately) to deal with the issues       between you and to reach agreement and settlement;
·     Preparation of a binding settlement agreement, or if no settlement, a Schedule of Outstanding Issues.

Module 3 - alternative to Module 2

·    A full day arbitration meeting to determine a settlement. 
.     Preparation of a binding written, reasoned award.


Children Modules: a guide                  

We will guide you in relation to residence and contact arrangements which are most suitable for you and your family.

Module 1

·     Individual telephone contact with each of you separately;
·     Individual meetings with each of you;
·     Meeting with your child/children if this is sought dependant on the child's age and understanding;
·     Preparation of parenting plans: see free parenting plan;
·     Guidance on further information needed;
·     Joint outline of issues or settlement agreement.


Module 2 - if you have not settled in Module 1

·     A full day facilitated meeting with both of you (together or separately) to deal with the issues       between you and to reach agreement and settlement;
·     Preparation of settlement agreement, or if no settlement, a Schedule of Outstanding Issues.

Module 3 - alternative to Module 2

·    A full day arbitration meeting to determine a settlement. 
.     Preparation of a binding written, reasoned award.



For the Children modules: where both parties agree to this, it is frequently possible to move straight to Module 2, and many clients prefer this cost-saving approach. Whether this is possible will depend on the particular issues of your case.

Thanks for your support

What a delight, on opening this week's email, to find such lovely messages of support - Elena Lavinskaia Independent Human Resources Professional, and Bernadette Schutte Managing Director at LogoVisual.

Particular thanks to Colin Bourne Mediator and Employment Law Barrister at Kings Chambers, who wrote "Stephen, I wish you luck in your new venture. I can think of few people who are better suited to this kind of service. Your tact and sensitivity in difficult situations (coupled with your effortless charm) are great assets for you and your clients". What a generous endorsement! Many thanks to you, Colin, and to all who have taken time out to write.

'Divorce Without Pain ©' - up and running!

Photo by istockphoto.com


Since starting the first 'case trial', our email box has told us that there has been a huge interest in 'Divorce Without Pain' from both potential clients and solicitors alike. In the early months we kept a strict limit on the cases that 'Divorce Without Pain' would accept; selected by apparent suitability, with fairly strict criteria being applied. So, again - a big public "sorry" to those potential clients who we had to turn away.

The experience to date has taken us to a new position of confidence in both the process and the business side of  the co-operative 'Divorce Without Pain'. As you will see from the blog entry "Five Months On", we experienced a constructive learning curve, with lots of success and no apparent problems. Outcomes have been consistently adjudged as 'excellent', and more important, so has been the individual client feedback.

The 'Divorce Without Pain' team have contacted all of the District Judges in the northern part of the North Eastern Circuit to inform them of our progress and to secure their continuing support. Many of you who practice in these courts will find that District Judges will be advising referral to organisations like 'Divorce Without Pain' as a preliminary step to avoid the stress, cost and delay of court proceedings.

Several family law solicitors have enquired as to their role in relation to the process. One regular question has been "Are we to be frozen out of family conflict resolution"?  The answer is simple - No!

Whilst direct contact with 'Divorce Without Pain' from clients without a solicitor is encouraged, we recognise that some husbands/wives/partners/fathers/mothers/grandparents feel more confident if they have had individual advice before entering any dispute resolution process. Of course, this is where you, as solicitors, come in, and we will recommend your individual practice. Additionally, as will be seen from the case studies, a number of parties attend with their solicitor. Clearly, the cost savings for clients are reduced this way, but parties often prefer to have the peace of mind of having a trained professional with expertise in the field to attend them at a meeting. Again, this will be a special role for you. Finally, there is nothing to stop you from joining us at the 'Divorce Without Pain' co-operative to provide this special and long overdue service. Contact me, Stephen Twist, or any other member of the team to discuss this if you are interested.

The landscape for resolution of family disputes is changing, and most would say changing for the better. For too long our clients have been subjected to enormous stress and cost of an adversarial system that painfully takes them through a drawn-out process in the courts. Judges (lead by Sir James Munby, President of the Family Division) agree that change is long overdue. Here at 'Divorce Without Pain' we are at the cutting edge of change, but taking it with care. Working collaboratively we can make a difference to the otherwise dreadful experience of separation - for spouses, partners, parents, grandparents and children.


'Divorce Without Pain ©': 5 months on from formation June 2010



A blog entry from November 2010, when 'Divorce Without Pain' had been running for 5 months.

The co-operative 'Divorce Without Pain' (DWP) has now been in existence for 5 months. How is it working? What has arisen from the learning experience? What for the future?

Necessarily with a new scheme, we have confined our case load to suitable, selected pilot cases, two of which are captured in the 'Case Studies' published here on the DWP blog. This element of selection almost certainly distorts results - by choosing apparently ideal cases for facilitation one inevitably attains a higher level of satisfactory outcome. So, the fact that every case undertaken has resulted in total settlement with avoidance of court proceedings is exciting, but not necessarily indicative. What is clear, is that the methodology of DWP dispute resolution is particularly suited to family conflict, whether in relation to children, money or both. Clients (whose identities have to remain confidential) have reported first class feedback from both the process and the facilitators involved. Scoring on a '1=low' to '10= high' scale, we are yet to encounter a score below 9 from either party in any of the pilot cases! So, in summary, it is working very well indeed.

The pilot cases have thrown up a number of useful pointers with regard to 'process'. The first and most important appears to be the wish to be steered in a more directive way than simple facilitation. Mediators are reporting that the parties, aware that the mediator is also an experienced legal practitioner, are wanting to know what a court would do if they were not to agree between themselves. Of course, this is a difficult area. Different judges will make different decisions; outcomes will vary on the basis of what evidence is accepted and how parties come across. The mediator or facilitator will never know for sure what would be the court's outcome. Experience goes a long way, but introducing it changes the process from being, what the purists would recognise as facilitative/non-evaluative mediation - to a hybrid form of more directive/ evaluative conciliation.

Taking this into account, DWP quickly decided that we should not be too 'precious' about process. We moved away from compartmentalised thinking about the process: "is it this?" "is it that?" - to a much more holistic event that took account of the individual expectations and wishes of the clients concerned.

Unsurprisingly, most of the pilot cases turned less on the 'hard' issues of facts, law and positions - and more on points of perceptions, misunderstandings, emotions, interests, concerns, feelings, beliefs, values, needs and fears. As practitioners, we have known this to be the case all along, but as the legal process generally ignores them, we have steered our clients away from them. What DWP facilitators reported as "fascinating" was the range of issues that could be resolved alongside the thorny details of 'how much contact' and 'how much money'. The upshot has been that, by way of process, DWP is more inclined to focus on an extended range of issues, rather than simply pressing for a quick fix.

So, what of the future? 'Divorce Without Pain' as both a method of working to resolve family disputes and as a successful organisation is clearly here to stay. Over the next five months we will be moving it into mainstream dispute resolution and offering the service more widely over North East England. Whilst the Bar Council has been encouraging of developing a nationwide application, we propose to tread with care. Importantly, we need to keep the confidence of the District Judges who would otherwise decide these cases in the absence of agreement, and to do this we need to maintain close relationships and a close dialogue with them.

If you are reading this, and have got this far, why not sample the service that DWP provides? At present, the charges are pilot-scale modest. Consider making a referral to a client, or as a party to conflict simply take the plunge and pick up the phone to chat about the service. We are always pleased to discuss things without charge, and to steer you to the best outcome.

Divorce Without Pain ©: Case Study 1

Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

THE FACTS
Anthony and Mandy married 14 years ago. They have two children, Mark aged 14 and Matilda aged 10. They lived together as a family with their dog Sydney in the north of England. Anthony is one of two directors and proprietor of a document delivery service earning £65,000 per year; Mandy is a housewife, working part-time on the company's accounts, earning a nominal £5,000 per year (for tax reasons) in addition to child benefit. They bought their home, 'The Elms' ten years ago for £125,000. It is now worth an estimated £400,000, with a mortgage of £50,000. The balance was contributed by Mandy's parents. Presently Mandy resides there with the children. Additionally each have a car, Anthony's Land Rover Discovery on finance and Mandy's Renault estate worth £2,000. Between them they have investments worth £80,000, and cash in bank and building societies amounting to £18,000. Anthony's pensions total in Capital Equivalent Transfer Value(CETV) £140,000 and Mandy's frozen teacher's pension with her former employer, a local authority, has a CETV of £22,000. They have a time share in Portugal and a yacht 'Spirit of Enterprise' which is moored in a local marina. Both of the children are bright - Mark plans to be an architect and shows promise with maths, physics and design, and Matilda is a promising cellist and musician. She has just been notified that she has a scholarship to study music at a prestigious private school.

THE ISSUES
Unfortunately, Anthony and Mandy separated two months ago. Mandy discovered that Anthony had an affair with a business rep, and he moved out of 'The Elms' into a rented apartment near to the company's offices. Whilst their initial separation was acrimonious, both sought to keep an open mind on the future. They attended two sessions with 'Relate' but Mandy declined to attend further as she said that Anthony was overbearing. Communication broke down finally when Anthony disclosed that his new partner was pregnant with their child. Neither Mark nor Matilda want to see their father, declaring that "they hate him for what he has done to the family". Both Anthony and Mandy went to see separate solicitors who gave free initial consultations and estimated future costs for each of them in excess of £10,000, and in each case wanted down-payments of £2,000. Anthony had heard of the 'Divorce Without Pain' project and he and Mandy agreed to take part in a pilot scheme.

The issues for both parties were essentially the same: to sort out the money and to deal with the thorny issue of contact between the children and their father. At the outset, neither could agree on anything, both distrusting each other's motives, honesty and commitment to the children.

Even the question of with whom the children should live was in issue. It was common ground that they had always lived with both parents. Anthony contended that Mark had taken against him due to the way the fact of his affair had been disclosed by Mandy. Whilst Anthony had no way of knowing what had been said, he reported that Mark's reaction was quite dramatic. Matilda's reaction became less critical - she did not excuse her father but wanted to keep some contact with him and would like to see the baby when it is born. Neither of them wanted to see their father without the other. Anthony contended that, had he the opportunity to speak to the children himself, they would understand and may wish to see him. He sensed that they had been influenced by Mandy and this had resulted in the severity of their reaction. On the basis that Mandy was not actively seeking to promote contact, Anthony was considering issuing an application for the children to reside with him. Mandy said that she simply told the children the truth and that they were old enough to have a view. She accepted that she was extremely hurt by the separation, but more so by the fact that Anthony was to have a child with another woman. She contended that the betrayal was total.

On the question of money, things were equally fraught. Following separation, Anthony had continued to pay the mortgage and had funded the parties' joint bank account to cover household spending. When Mandy had withdrawn £5,000 from it (she reported for living expenses and to pay for a family holiday with the children), Anthony froze the account. He had approached the building society to change repayments on the mortgage to interest-only, but the Nationwide declined this without written consent from both parties. Ideally, Anthony wanted to retain 'The Elms' as a home for himself and the children, but failing that was content for it to be sold. Mandy wanted a transfer of Anthony's interest in 'The Elms' to her free of mortgage as part of the divorce settlement. Additionally she wanted a pension share and maintenance for herself and the children.

Whilst both parties had been told that their costs would exceed £10,000 each, in reality they could well reach £20-25,000 each to include the Children Act issues and the family finance costs. Whilst the value of most of the assets was reasonably ascertainable, the value of the document company was in issue. Anthony contended that it was of notional value as it owned no particular assets apart from vehicles on contract, and that his co-director had the right to buy his shares at nominal value. He claimed that the company's value was simply the income that it generated. His counter proposal, after some heart-searching, was that he would pay child support at the CSA rate, but that he wanted a clean break with Mandy, her interest in property and income to be met by a lump sum which he would raise on the value of 'The Elms'.

THE REFERRAL
Both Anthony and Mandy agreed to undertake two modules from 'Divorce Without Pain' Childrens and Family Finance modules. For this there was a fixed fee of £500 + VAT per module per party, making a combined total fixed fee of £4,000 + VAT. The Children's modules comprised:
Module 1
• Individual telephone contact with each separately;
• Individual meetings with each lasting about 1 hour;
• Meeting with Mark and Matilda if this is sought, agreed by parents and appropriate;
• Preparation of chronologies and written position statements;
• Guidance on further information needed;
• Joint outline of issues / agreement.

Module 2
• Facilitated meeting to deal with the issues and to broker agreement if possible;
• Preparation of settlement agreement, or a Schedule of Outstanding Issues.

The Family Finance module comprised:
Module 1
• Individual telephone contact with each separately;
• Individual meetings lasting about 1 hour;
• Preparation of chronologies, schedules of assets, and written position statements;
• Guidance on further information needed;
• Joint outline of issues / agreement.

Module 2
• Facilitated meeting to deal with the issues and to broker agreement if possible;
• Preparation of settlement agreement, or a Schedule of Outstanding Issues.


OUTCOME
Anthony and Mandy agreed, on advice, to deal with the children issues first. They also agreed for Mark and Matilda to be seen. The outcome was, despite initial anger and reluctance,that both Mark and Matilda would see their father again but wanted to reside with their mother. Contact with Anthony was undertaken within children's module 2 using the services of an experienced Children's Guardian. Mark stated that he wanted to stay at his current school, and Matilda wanted to take up the music scholarship at the fee-paying school next year. Neither of them wanted to move away from their current location if possible but recognised that 'The Elms' may have to be sold and another home purchased. After long negotiation, Anthony and Mandy agreed that, in term time, the children would spend Friday at 6.00pm to Sunday at 6.00pm each alternate weekend with their father and would meet him for tea on Thursday after school in the week following a contact weekend. It was agreed that Anthony would collect and return the children, but he would do so alone without his new partner. Main school holidays were to be shared with 14 consecutive nights with each parent during the long summer holiday. The children would spend alternate half-term holidays with each parent and alternate Christmas and New Year. As part of the deal, Anthony agreed to fully fund Matilda's school fees should she remain in private education. The detail was set out in an agreement which both Anthony and Mandy signed.

The family finance issues were more complex and equally emotional. Equity in 'The Elms'(value after deduction of mortgage and estimated selling costs) was a substantial £342,00. As principal residence this was capital gains tax free. Mandy's parents had contributed 60% of the initial purchase price, although it was conceded that this was a gift. The document distribution company was an asset and did have value over and above the income that it generated. Mandy believed that a buy-out acquisition from a national competitor was possible, and this could result in a substantial windfall to Anthony. Whilst Mandy conceded that she had an earning capacity, it was recognised that she would need a period of three years to get back into the labour market as a teacher, and that further training would need to be funded.

In the end an agreement was reached in which Anthony transferred his interest in 'The Elms' (worth £171,00) to Mandy upon her undertaking to remove his name from the mortgage. She would then have the option to keep it or sell it to downsize. She was confident that her parents would support the running costs so that sale could be avoided. Anthony would retain £60,000 of the investments (currently in his name), the 'Spirit of Enterprise' worth an estimated £70,000 and his Land Rover worth £15,000. In addition to 'The Elms', Mandy would retain investments of £20,000, cash of £8,000 and her Renault. All household contents (bar a schedule of agreed items including art works worth £50,000 to Anthony), would remain with Mandy and the children. Additionally, she would receive a modest new share issue of Class B non-voting shares in the company, the value of which would be payable should Anthony sell the company or it be acquired. Anthony agreed to make maintenance payments to Mandy at the rate of £300 per month for a time-limited period of 3 years, after which there was to be clean break both in life and on the death of either party. Anthony was to pay child support at CSA rates. In the light of her capitalisation in 'The Elms' each party would retain their own pension funds. The time share would be retained by Anthony in trust for the children.

Oh, I hear you ask, what happened to the dog? Well, Sydney was to remain with Mandy, but visit Anthony alternate weekends when the children came to stay with him!

Divorce Without Pain ©: Case Study 2



Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

THE FACTS
Andrew and Samantha faced major conflict following their emotional separation and the instigation of divorce proceedings by Andrew. The proceedings, brought on the basis of Samantha's admitted affair with a friend of the family, were not resisted by Samantha. Whether by choice or because of advice from solicitors, neither Andrew or Samantha wished to leave the matrimonial home in which the three children of the family, Jennifer (6), Antonia (5) and Toby (3) had lived with both parents. Fortunately their home was sufficiently spacious to allow this, but naturally it resulted in family tension which clearly affected the children.

It was evident that the family home had to be sold. Whilst both Andrew and Samantha worked, such was the mortgage on the house that neither could realistically afford to keep it without financial assistance from the other. Samantha was the highest earner, and in effect held the purse strings. After months of impasse, she gave notice that she would commence financial remedy proceedings in which she would seek an order for sale of the home. She also issued proceedings asking the court to determine that the children should live with her.

Samantha's aim was to re-locate to an area nearer her mother-in law's home (with whom she kept a good relationship) and which fortunately would not result in a change of schools. She sourced details of properties to buy and presented a convincing case to support the viability of the move. Andrew was resistant to a move from the matrimonial home. Whilst the mortgage was high, he considered that it was an affordable home should Samantha make appropriate financial provision under the Child Support Act towards the children, who he contended should live with him.

Over the children's lifetime, both Andrew and Samantha had shared child care, and unusually, Andrew had taken an equal role in home care, including washing, cleaning and household organisation. The fact of shared care created significant risks for them both should they continue with court proceedings to seek an order for sole care of the children. A judge was likely to find that historically neither parent had been a principal carer and that both parents could provide a similar level of care for the children. It was, in effect, a shared care arrangement. So which way was a judge likely to go? There were no compelling reasons for CAFCASS to be involved. The children were on the young side for their wishes and feelings to be determined, and if expressed, they would not be determinative of the outcome. The judge would have to hear from both parents and come to a finely balanced conclusion concerning residence.

Both Andrew and Samantha worked full time. Child care was provided through four channels: pre and post school support for Jennifer and Antonia, nursery school for Toby, paid child care for all three children when necessary, and importantly free child care from Andrew's mother Sheila and her partner David. Both were retired, but fit, well able and willing to be dynamically involved with 'their grandchildren'.

Each fearful of the risks of a court decision, Andrew and Samantha agreed that they would seek facilitation with 'Divorce Without Pain'.

THE ISSUES
For Andrew and Samantha, the issues were:
1.  With whom should the children reside?
2.  What contact arrangements should be in place for the other parent?
3.  How was such an arrangement to be managed?
4.  Should the matrimonial home be sold?
5.  If it was sold, how should the proceeds of sale be split?

THE FACILITATION
By the time 'Divorce Without Pain' were involved, the working relationship between Andrew and Samantha was at an all-time low. Both were distrustful of the other, and following rather acrimonious solicitors' letters, they were unable to communicate. They had arrived at a stage where child care duties were being apportioned, but the arrangement was far from smooth. Neither wanted to attend a joint mediation meeting - they simply wanted to procure the best outcome without going to court.

Accordingly, both had separate appointments with the same facilitator to discuss the issues. The meetings were relaxed and informative, the facilitator being asked to share experience and to take a proactive role. The facilitator took the view that if the issue of housing could be resolved, the remaining options for child care would be simplified. On the respective incomes, taking into account a proper forecast of outgoings, it was apparent that Andrew's wish to retain their home was impossible. A court would have required a sale with equity release to both parties. This was a difficult decision for Andrew, but one which he realised was inevitable when faced with reality-checking the figures. Whilst Samantha earned more than Andrew, the difference in earning capacity was unlikely to result in either a smaller share of equity or spousal maintenance. The only factor that may have resulted in different shares of capital would have been an unmet obligation on one parent to provide a principal home for the children.

Having negotiated the hurdle of selling the home, it was clear that both parties would need their own accommodation. Mindful of the risks of moving away from the catchment area of the school and nursery, both Andrew and Samantha concluded that they would each seek to buy a smaller property in the locality. There was sufficient equity for this to happen, assuming they chose with care and took older properties. The facilitator helped each to identify a budget for purchase and to collaborate on marketing the existing home. Special interim arrangements were put in place should either party be unable to match an agreed completion date.

On the basis that neither Andrew or Samantha were confident that they could obtain sole residence of the children, a shared residence arrangement was facilitated under which the children spent broadly equal amounts of time with each parent in that parent's new home. The arrangement was skilfully conceived - simple to understand and operate, giving both parents time with the children alternate weekends, and reducing the hand-over meetings. In the course of the facilitation it became clear that Samantha and Andrew's mother Sheila could work together, and so it was arranged that all hand-overs that did not occur after school would take place at Sheila and David's home, reducing the emotional pressure on the parties. Samantha and Sheila were able to agree other arrangements concerning the continuation of child care, and Sheila agreed to take the communication role between the parties.

OUTCOME


Both Andrew and Samantha considered the arrangement to be a success. They felt that this was an option that would not have been open to them had they continued with a court case. Both were aware that they had made compromises of their expectations, but valued the consequence of this from the children's point of view. The total cost to each party was £1,500. In contrast, this level of expenditure would not have taken the parties to a first appointment in financial remedy proceedings. A loss for the lawyers, but a win for Andrew, Samantha, Sheila, David and the children Jennifer, Antonia and Toby.

Divorce Without Pain ©: Case Study 3



Photo of the author' s former farm at Sutton Bank

Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

THE FACTS
David (58) and Tanya (53) separated after a 34 year marriage - considered to be very long marriage. They met at school and were childhood sweethearts. Their two children, Grace (an independent business woman) and Jonas (who farms with his father) are both married and have children. Both they and their four children retain a close relationship with David and Tanya. 



David, and his brother Neil inherited the family farm over twenty years ago on their father's death. Before he died their father had transferred a one third interest in the farm to each of his sons (to reduce taxation), and upon his death, his interest was divided equally between them, giving each a 50% holding. They continue to farm in partnership. Following their father's death, David and Neil's mother Rhona, had left the farmhouse to move into a restored bungalow on the outer perimeter of the farm.  At the time of referral, Jonas, who works with his father and uncle on the farm, had also separated from his wife Joyce, and moved into one of the farm cottages. Unusually, despite emotional separation and the issue of divorce proceedings, both David and Tanya continued to occupy the family farmhouse, living separate lives in the home.

THE ISSUES
For David and Tanya, the issues were:
1.  Where should Tanya live?
2.  How was money to be raised to provide her with a new home and secure her future?
3.  Could something be done to avoid a sale of the farm?
4.  How would any arrangement relating to the farm impact on Neil?
5.  What was to become of Jonas?

THE FACILITATION
This presented as a difficult case, but not untypical as a family farm dispute. In legal terms following such a long marriage, Tanya could lay claim to a substantial interest in the farm which covering over 400 acres, was very valuable. Of course, only 50% of the farm and the farm business belonged to David; his brother Neil owning the other half. Whilst Neil did not live on the farm, as a younger brother, he was highly active and clearly very interested in a facilitated outcome. As Neil had never married and had no children, Jonas too was clearly highly concerned about the outcome, as he stood to inherit the lion's share of the farm.



The parties were referred to Divorce Without Pain by Grace, who was familiar with mediation facilitation in a business setting. Whilst she declared that she had no personal interest in the outcome, she was determined that court proceedings should be avoided to 'save the farm'. On the other hand, she supported her mother who she saw as extremely vulnerable, facing upheaval and uncertainty at a difficult stage of life.


It was decided that all of the family should participate in a facilitation. The instructions to the facilitator were that, should agreement not be possible, the matter should proceed as a private arbitration with written award on the understanding that all parties would abide by the outcome. In effect, the parties chose a hybrid process where both facilitation and evaluative determination would proceed simultaneously. For the purpose, the parties selected two co-mediators, on the understanding that they would produce a joint award as arbitrators if agreement was not possible. 


The mediation was conducted over one day and took place at the farm. It was agreed that Grace would support Tanya and Neil would support David. Jonas would be present, but not active as a participant. David and Neil's mother Rhona was also to attend, but take no active part. Both David and Tanya were represented by solicitors at the mediation. A conveyancing partner was also on standby. 


The main concern was that the farm and land was valued at £2.8m. Additionally, there was the capital value of farm equipment and crops. There were no other substantial liquid assets, although clearly the farm had borrowing potential. The parties decided against a business valuation, although they arranged for a joint valuer to be available on the telephone during the mediation meeting. It became clear that a sale of land was not an option, nor it appeared were the parties to contemplate a sale of the farmhouse. 


Over a period of 6 hours, various options were explored. Much of the discussion took place in open session, preserving the visible impartiality of the co-mediators, although some caucus meetings were deemed necessary and were agreed to by the parties.

OUTCOME
The outcome was totally surprising. The mediators focussed attention on the issue of housing and encouraged the parties to think laterally, including all of the assets that were owned within the partnership. They wisely dismissed the idea of neutralising the value of any part of the farm by transfer to Jonas (in the light of the prospective claim against him by his ex-wife), and the decision for him to have a neutral role proved wise. 



Having concluded that they would wish to keep the farm intact (preserving the family relationships) they  examined 'interests' rather than legal entitlement. Whilst Tanya wanted a comfortable home of her own, she did not want to move any distance away from Grace and Jonas and her grandchildren. Her main priority was to live separately from David.


The parties concluded an agreement thus:
David and Neil's mother Rhona would vacate the bungalow and move back into an adapted ground floor suite in the farmhouse (for which David would independently raise borrowing). Jonas was to retain a degree of independence in the farm cottage, which would be the subject of modest rental agreement. The life interest trust which enabled Rhona to occupy the bungalow would be terminated by agreement, and replaced with a similar trust in relation to the farmhouse suite, giving her identical security of occupation, whilst preserving tax advantages upon her death. Tanya was to be given the freehold interest in the bungalow, enabling her, should it become necessary, to sell should she wish. This had the added advantage of proximity and continuity for Tanya with her children and grandchildren. As the value of the bungalow clearly failed to meet her capital entitlement, the farming partnership was to be dissolved, replaced by a limited liability company with a share allocation to her. The parties intention was to transfer their respective shares in periodic tranches to Grace and Jonas at appropriate intervals, following the conclusion of Jonas' family finance dispute with his wife. This would go some way to mitigate inheritance tax upon their deaths. The notional loss to Neil of the transfer of interest in the bungalow to Tanya and the adaptation of the farmhouse was to be compensated within the share distribution.


In the event, the outcome was distinguished by its total simplicity and the way it met all of the family's interests. It was an outcome that would have been impossible for a judge, whether by way of time or jurisdiction to steer and make such orders. Interestingly, following the mediation, the arrangements that were agreed have been put into effect, and the family still retains a functionality that is rare following family finance disputes.

Divorce Without Pain © : Case Study 4



Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

THE FACTS
'Divorce Without Pain ©' were consulted by three solicitors - each instructed on behalf of separate parties to a family dispute. The issue concerned property, money and possessions following the death of a 28 year old man. The parties were his parents, brother and sister; his girlfriend; and the trustees under his Will.

Jake, a soldier with HM Forces, died just after his 28th birthday following a short illness. Leading to his death he had cohabited with his girlfriend/partner Terri for four years. They had no children. The relationship between Terri and Jake's family had been fraught, resulting in Jake, his parents and his siblings being estranged for some time. Jake's parents blamed Terri for the family difficulties. Jake's brother Tom supported his parents in their view, Jake's sister Emily being a little more sympathetic to Terri's situation.

Before Jake left home five years earlier, he had made a Will, an unusual but important step for a then twenty three year old solider. At that time he was not in a significant relationship and had made provision for his parents Norman and Irene, his brother and sister, Tom and Emily, and left small bequests for his twin nephews Rick and Kye, sons of his brother Tom.

The reason for Jake's Will became clear. Jake's parents, Norman and Irene had taken Inheritance tax advice and as a consequence, disposed of fairly large parts of their estate to their three children, believing that they would survive them. The share that Jake received had provided a very substantial payment for his apartment; and it was this into which Terri had moved four years earlier, selling her own flat and pooling their resources. Jake's apartment had remained in his sole name. There was a dispute as to what had happened to the modest equity coming from Terri's flat.

Whilst 'Divorce Without Pain' as facilitators are not obliged to steer cases in accordance with strict legal principles, it is important to know that a number of legal points arise in situations like this. First, the validity of the Will. In this case, Terri did not challenge its validity, however she asserted that she was financially maintained by Jake and that the terms of the Will could be challenged under sections 1(e) and 2 of the Inheritance (Provision for Families and Dependants) Act 1975 so as to make provision for her. Second, Terri asserted under the Trusts of Land and Appointment of Trustees Act 1996 that she had a part-interest in Jake's apartment by virtue of her contributions and Jake's promise that she would be given a legal share of the property. Of interest, the Law Commission has recently recommended that the law relating to cohabitees should be changed http://www.justice.gov.uk/lawcommission/publications/intestacy.htm, although this is still at the recommendation stage.

THE ISSUES
The 'Divorce Without Pain' mediators quickly established that Terri was wanting to remain in the apartment and to avoid any part of its value, or any of the contents of the apartment passing under Jake's Will. Norman and Irene contended that the apartment only existed because they had sold their interest in an investment property to transfer money to Jake for its purchase. Their point was that this was family money and had not been contributed to by Terri. Tom, Jake's brother supported his parents and pointed out that unless the apartment was sold, not only would he loose out, but also would his twin sons, Rick and Kye. Emily had some sympathy for Terri, believing that she should receive some support from Jake's estate, but that what Terri was seeking was far too much. Terri's answer to the family was that she had sold her own flat and that the proceeds of sale had effectively been shared by her and Jake on the basis that she would acquire an interest in his apartment. She was for saying that she would not have sold up and moved in without such an assurance. The trustees had a financial duty to ensure that Jake's estate was administered properly, and as the terms of his Will had been challenged, were involved but not directly participating.

THE FACILITATION
In this case two mediators worked together in a co-mediation model. Both were experienced in family property issues and versed in Trusts law. The parties selected the co-mediation model because of their number (Norman, Irene, Emily, Tom, Terri, a trustee and their respective legal representatives). It was clear that with two mediators, no-one would be left waiting for any significant period of time, and the momentum of the mediation could be kept going. The parties also elected to attempt to resolve all of the issues in one day, for which the co-mediation model is ideal. The two mediators were very used to working seamlessly together, albeit with different personalities and complementary styles. Both mediators moved between all of the parties, sharing between the two of them all of the information that came into their possession. Under this model, the mediators will work side by side, and separately, depending on the stage of the process.

The one common intention of all of the parties was to avoid litigation if at all possible. The parties' solicitors estimated, should the matter have to go to trial before a judge, that their joint legal bills would exceed £60,000. This would probably fall to be paid by the estate, and only the balance of what was left would be available for distribution. Using the co-mediation model, the total cost of the facilitation was £2,500 plus VAT.

OUTCOME
The parties realised that they each had a different view of the both the facts and the law. Only a judge could determine whether Jake had indeed promised Terri that she would acquire an interest in the apartment. This would be a critical aspect of any trial, because should Terri have successfully proved such common intention, she could assert a proprietary interest. Certainly it appeared that Terri had contributed £10,000 from the sale of her own flat to the joint finances. Moreover, following her redundancy from work (those monies having been spent before Jake's death), she had in fact become dependant on Jake's financial support. This could provide good reason for a judge to vary the terms of Jake's Will.

In the light of the differences of points of view and positions, it was decided that a solution should be driven by pragmatism rather than conjecture about legal outcomes.

Due to the amount of equity (value after borrowing) in the apartment, it was clear that the apartment would have to be sold to accommodate a compromise. Whilst at first this was resisted by Terri, after careful thought she conceded the point. The parties had been advised by the mediators to obtain advice on tax liability (which they had done) and to agree a valuation of the apartment (which they failed to do). However, they followed the mediators' advice and jointly instructed a property agent who advised the current attainable market valuation. The simple question was how best to divide the equity.

After all borrowing on the apartment, outstanding bills (including legal, valuation and mediation costs) discharged, and taxation liability paid, the parties agreed that there would be about £100,000 remaining. The parties agreed that they would vary the terms of Jake's Will to provide £30,000 to Terri, £10,000 each to Norman, Irene, Emily and Tom, and the remainder of about £30,000 to be placed in trust for the grandchildren. It was also agreed that, save for personal items belonging to Jake and certain items of antique family furniture and paintings, Terri would retain the contents of the apartment.

POSTSCRIPT
The mediators observed that the question of legal costs made this a dispute that could not have been litigated. If legal costs up to and including a two day trial had been (as their solicitors suggested) in the region of £60,000 - the value of the estate would have been reduced to about £40,000 before sharing. In the circumstances of the case it was highly unlikely that any one party would have succeeded outright, thus gaining a prized but illusive costs order. In the event, the family retained @ £70,000 worth of assets and Terri the remaining £30,000. Importantly, the family were able to move a significant part of Jake's estate into trust for the grandchildren. The grandchildren's fund alone was ⅔ the total fund that would have been available after a trial.

Interestingly, despite the conflict both before Jake's death and following it, the parties both shook hands and hugged at the end of the agreement signing. Both Norman and Irene said, "We lost our precious son, but we have felt for the first time that we have gained a daughter in law".

Divorce Without Pain © : Case Study 5



Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

THE FACTS
'Divorce Without Pain' were consulted by two solicitors - acting for the husband (Sydney) and wife (Leticia).  The parties wanted
 to reach an agreement if possible in relation to their financial affairs following the breakdown of their 27 year marriage. Both were mature in age. Their children were adult and independent. 

After having separate careers, they had launched a business together in the technology sector. The business was essentially run as a family affair, initially from their home and later from business premises nearby. They employed a small team of technical, artistic and administrative staff and the business progressed well. About five years ago, it was incorporated into a family company, and now comprised their main asset. It had been largely self-financing, save for a modest loan by Leticia's father (Gilbert) as part of his wider investment portfolio. On incorporation of the company, he received a proportionate share issue to reflect his financial investment. The remaining shareholding was divided between Sydney, Leticia, and Gilbert, but with Sydney holding the majority, and thus exercising a controlling interest. 

Both Sydney and Leticia brought distinct skills to the enterprise, and it would be fair to say that both were equally valuable to the business viability. Although their marriage had failed, neither could really afford the lucrative business to fold. They agreed to separate, but economically and financially they were to remain tied. Matters were further complicated by the prospect of a commercial buy-out of the company which, if it came to fruition, would result in a big windfall, whilst retaining both Sydney and Leticia's services within the enterprise.

THE ISSUES
The issues for 'Divorce Without Pain' facilitators were:
  • How to manage both the emotional and the financial separation?
  • What changes were needed to ensure an equitable division of assets from the marriage?
  • What changes were needed to the structure or the company and its shareholding?
  • How best to manage the company for the future, given their divorce?
  • How to retain the functionality of their working relationship at a time of considerable stress?
  • How to deal with the share imbalance between the parties, and the possibility of Gilbert's shareholding being deployed to effectively control the company?

THE FACILITATION
Increasingly, 'Divorce Without Pain' is asked to provide 'paired facilitators' with experience of working together on financial affairs, especially in the field of Financial Remedies and trust law. This was yet a further case where two facilitators were sought, with the aim of reaching a resolution of all issues within two days.

The facilitators were selected on the basis that they had worked together on numerous occasions in relation to high-pressure cases, and had a track record of success. They worked with both parties and their legal teams. All information was shared between them and the parties. The process was devised to eliminate any element of adversarial or competitive practice.

The facilitators reported that the case was fundamentally simple as regards the principles, but proved difficult with regard to the detail. Had attention not been given to the practical details of the case, the facilitators felt that any deal would not have lasted. The facilitators also embraced the emotional issues and helped the parties devise suitable, strenuous strategies to hold their working relationship together. Special attention was given to the methods, manner and frequency of communication - so that both parties had identical expectations and robust systems to fall back on. Without seeking to stifle the creativity that had made the company so successful, the facilitators addressed the use of agendas and how these should be formulated, as a 'prequel' to meetings. Both facilitators had experience of employment mediation and conciliation, and reported that this was of great value in reaching the settlement.
OUTCOME
As was evident from the list of issues above, a major concern was to reach a balance between equality of outcome for the parties, whilst addressing the possibility that Gilbert's share holding could be deployed to gain control of the company by Leticia. For this reason, the facilitators suggested that Gilbert should be separately represented in the mediation. Whilst it was critical that Gilbert should retain value in the company - both in capital worth and dividend - it was unnecessary for him to exercise control. He acknowledged that the enterprise in which he had invested had resulted in exponential profit under the joint management of his daughter and son-in-law, and that a balance of control between these two was critically important to the company's future success. It was suggested that a new, separate and non-voting shareholding could be issued to retain the value of his investment and protect future profit sharing, to which with his legal adviser's assurances, he agreed. All that remained with regard to share alteration was to equalise Sydney and Leticia's voting shares. As part of this arrangement, both Sydney and Leticia made new Wills to provide a compatible arrangement in the event of their death. Advice was taken at this time to address tax liability, and this was integrated into the agreement.

The issues arising from the emotional side of separation were more problematic. These had the potential to impact seriously on the viability of the company. New, intelligent working practices were needed to separate their respective areas of responsibility whilst preserving their dynamic communication that was integral to this business. The facilitators spent time dealing with these particular issues, developing systems of meetings, the formulation and use of agendas, specifying methods of communication, and separating Sydney and Leticia's functions as much as possible. Whilst is was not feasible for the parties to work exclusively at different locations, their contact together was delineated by agreed strategies which were captured in a 'working agreement'. A principal part of the agreement was what to do in the event of Sydney and Leticia having conflicting views. The 'conflict management' provisions were tightly drawn so as to make their responsibilities very clear in the event of disagreement.

Clearly, Sydney and Leticia had other assets, and these were the subject of agreement in accordance with the Matrimonial Causes Act. The whole arrangement was then captured by way of a settlement order which both parties, having been advised by their respective solicitors, agreed to hold as a Xydias v Xydias compromise.


POSTSCRIPT
Feedback was sought from both the parties and their legal teams. A very high level of satisfaction was evident, all parties expressing "total satisfaction" with the method of facilitation, the mediators and the outcome. The respective legal teams considered that the result was "one that would not have been achieved by going to court" and that "probably could not have been negotiated without the intervention of the facilitators". Importantly for the parties, the result was achieved within the strict time-scale of two days, and at a fraction of the cost of litigation.

Divorce Without Pain © : Case Study 6



Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.

The facts

Grandparents Henry and Elaine contacted 'Divorce Without Pain' concerning contact with their two grandchildren, Milo and Abbey. 

Their son, Simon, married Chantelle 9 years ago, and their grandchildren Milo (7) and Abbey (4) were brought up in a loving household with their parents until Simon encountered problems with alcohol. Simon and Chantelle separated, the children remaining with their mother in the family home.

The separation was not easy, with blame and acrimony on both sides. Chantelle decided that the children should not see their father, and with this, the children became estranged from their paternal grandparents, Henry and Elaine. 

Chantelle's parents Guy and Barbara, who had regular contact with Milo and Abbey, were not close to Henry and Elaine, but had sympathy for them concerning their lack of contact with their grandchildren. They were reluctant to intervene, for they did not wish to upset Chantelle.

The referral

Neither Henry nor Elaine wanted to make an application to the court. They wished to avoid the conflict escalating and sought advice on alternative ways forward. They had written to Guy and Barbara and received a sympathetic telephone call. They had tried to contact Chantelle, but she had not responded. Whilst supportive of their son Simon, their relationship with him was strained as they considered him to blame for the breakdown of the marriage. 

The intervention

Following discussions with Henry and Elaine, 'Divorce Without Pain' appointed two facilitators to work with the family. The facilitators were both experienced family practitioners who were used to dealing with acute problems and conflict. Contact was made with Guy and Barbara who expressed their overall concerns about Simon and alcohol, and their fear that Henry and Elaine were simply acting as his agents.

The facilitators were able to provide reassurance on this issue, and arranged a preliminary meeting between Henry, Elaine, Guy and Barbara. The four agreed at this stage, that their meeting should be both confidential and child-focused. 

The meeting was managed successfully, and lines of communication were opened between the two sets of grandparents. Initially, Guy and Barbara agreed to send a fortnightly email to Henry and Elaine with news of Milo and Abbey and to send photographs and scanned school reports. More importantly, they agreed to speak to Chantelle with a view to arranging Skype contact between the children, Henry and Elaine.

This meeting proved to be a turning point for both sets of grandparents. Within a short period of time, Guy and Barbara were able to reassure Chantelle of the wisdom of facilitating contact, Skype became a weekly ritual when the children were with them, and eventually an away-day with both sets of grandparents was aranged. The facilitators gave advice on how best to manage this event, which successfully assuaged Chantelle's concerns that Henry and Elaine were simply trying to manufacture a meeting between the children and their father.

Although Simon's alcohol abuse had been a damaging feature of the latter stages of the marriage, all parties agreed that there were no child-safety issues so long as Simon was sober. The children missed seeing their father, but understood him to be unwell. 

The 'Divorce Without Pain' facilitators focused on this aspect, discussed the matter with Simon, and worked with Guy and Barbara who indicated that they would supervise a contact. The next step was to discuss this possibility with Chantelle. One of the facilitators met with her and an initial meeting was agreed during the time that the children would spend with Guy and Barbara. This too proved to be successful.

The final step for the facilitators was to replace the supervision by Guy and Barbara, with supervision from Henry and Elaine. A further meeting was required, attended by Chantelle and both sets of grandparents. With the build up of trust, an activities meeting supervised by Henry and Elaine, was set up and proved to be popular with the children.

The outcome

The breakdown of the relationship had been complicated by the loss of trust in Simon as a father who could remain sober and protect his children. Using the goodwill of both sets of grandparents proved critically important in producing a safe opportunity for the children to renew their relationship with their father. Work with Simon resulted in his self-referral for treatment, a further factor that helped to build confidence in the arrangement.

Postscript

The new contact arrangements are working well. Henry and Elaine have their grandchildren to stay every third weekend, and during this time the children have contact with their father at his parent's home, or at an activity attended by Henry and Elaine. Simon is now progressing with therapy and has provided his first 'alcohol-free' test, which has been shared between both families.


Spiraling Costs of Divorce



Lise Belle, writing in Daily Mail's 'YOU Magazine' 13 January 2013 describes just how out-of-control the issue of Divorce costs can be.

Charges of £750 per hour plus VAT -  for her, £40,000 a month in legal bills for 'liaising, chasing up and drafting';  and for a wife Angela, 61, from Derbyshire a £47,000 bill. Kirsty, 47, from East Sussex said "When we started, my solicitor estimated that the legal fees would be around £45,000, but it soon crept up to double that. I think the final figure will be £110,000 and I have had to secure a litigation loan to pay it". Emma, 57, from Sheffield reported "I had no idea how much divorce would cost. It's not as if solicitors have a price list on the wall. I'm not a stupid person, I'm well educated, but I don't work in a profession where every six minutes, you've clocked up another £25. My bill came to £30,000, and the only reason I could pay it was because my mother died and left me some money. I used my inheritance to pay my solicitor".

Only Alison, 45, from Kent came out well. "My solicitor was excellent; he advised me from the start to try to settle as much as we could between ourselves without involving lawyers. That advice not only saved us thousands, but it kept us talking, forced us to be civil, and I think that's why we still have an OK relationship four years later".

Alison's solicitor was spot on. The best way to deal with issues arising from divorce, whether to do with children or money, is to keep talking. Not perhaps as you did; now more in a practical problem-solving way.

Divorce Without Pain facilitators are trained to keep the dialogue going and to maximise the progress that you can make yourselves. Without a clock ticking and legal bills escalating, you can keep a semblance of control over both what you achieve and how much it costs to do so. Fixed fee structures let you know in advance just how much you have to budget, keep the flood-gates closed, and allow you to shop around if necessary.

Feel free to contact us should you simply want a steer on how to resolve your divorce issues. All preliminary contact is free and confidential.

Thanks to Daily Mail  'YOU Magazine and Lise Belle for the copy.

Legal Ombudsman speaks out on the cost of divorce

Interesting article from Adam Sampson
http://www.guardian.co.uk/commentisfree/2013/feb/28/divorcees-emotions-costs-lawyers




In my role as legal ombudsman, lawyers are always stressing to me that theirs is a vocation, rooted in a deep sense of ethics and commitment to the interests of their clients. But they don't mention that it is also a business: lawyers – now perhaps more than ever – need to have at least one eye on their profit levels. Without a good business head, few lawyers will survive today's economic challenges.
Nowhere is this tension between ethics and business as pronounced as it is with divorce. For a lawyer, a new divorce case is just another client, another day at the office; for the client – vulnerable, distressed and angry – this may be the worst thing that they have ever experienced. As my caseload shows, this collision does not always produce a happy result.
At best – and by definition, ombudsmen only see the worst cases – family lawyers are among the most supportive and client-sensitive lawyers there are. But in such cases – as our recent report into the issue shows – client emotion, unchecked by the restraining hand of a good lawyer, can create havoc. When two unreasoning spouses create a "divorce of attrition", the only winners are usually the bank accounts of lawyers.
Divorce is a complicated and often stressful business. There is usually a house to deal with, possessions to divide, children and pets to decide upon. And then there's the financial side of things: savings and income to calculate. But when an angry spouse sets out to punish their former lover, using the court as a kind of legislative bludgeon, it can result in both partners being hit with high legal fees, possible debt and a drawn-out, acrimonious battle. Some of the case studies featured in our report tell us as much.
This is where a good lawyer comes in. Sadly, all too often what we have found is that some lawyers fail to put the customer's needs above their desire to maximise profit. They allow customers to continue with an inadvisable course of action, failing to dissuade them from an emotionally driven campaign against their former partner – or just being realistic about how much it could cost. Unsurprisingly, we found that around one quarter of the legal complaints in family law cases were down to poor information about costs.
The relationship counselling charity Relate released some interesting research this week, about the effects of the breakdown of relationships on men. It found that men were actually at greater risk of suicide, while also being less likely to enjoy the support of a network of friends. So while figures from the Office for National Statistics show higher median gross earnings for men than women – confirming my suspicion that men have greater financial means to fight divorce cases – they are probably worse equipped emotionally.
This caught my attention largely because we had omitted an interesting statistic from our report. Generally, there is almost an exact equal split between men and women complaining to us. But in divorce cases, women are nearly twice as likely to complain as men. We didn't put this into the report, largely because we don't have any evidence about why that is.
But it does pose a few questions. Do some women smell blood on their emotionally vulnerable male counterparts and – subsequently, but inadvisably – strive for unrealistic settlements? Or do they simply come out fighting to redress the financial imbalance created by their former spouse's higher earnings, which, ironically, ends up incurring costs beyond their means? Do women get a worse time from divorce lawyers than men?
Some complainants are certainly the architects of their own problems. In one of our case studies, the complainant pursued 70% of her and her ex-husband's joint assets, despite being advised she could reasonably expect only 50%. When she didn't get her way, she complained to us, but we found no poor service. In this case, it seems she repeatedly ignored her lawyer's advice.
In another case a woman complained that her law firm had failed to make more of her husband's abusive past – despite failing to tell them she had been writing him affectionate letters throughout the case. She ultimately lost £30,000 pursuing a higher settlement, and we rejected the complaint since the law firm had acted perfectly reasonably.
Of course, men can be just as prone to playing the long game and of being stubborn to their own detriment. And it can be that women are following the emotional trajectory of their ex-partners and are seeking to keep as much stability and order as possible during an upsetting time.
The complexity of divorce cases means there are many things to factor into the equation. One thing is certain though: the less emotional people are during a divorce, the more likely they are to keep their costs down.
Because 27% of divorce-related legal complaints are about cost, and with sweeping changes to the funding of divorce cases (withdrawal of legal aid for instance), there is a greater onus on lawyers to help clients manage budgets. Providing reality checks and being clear and transparent about costs from the off would be a great starting point.