New approaches to separation: Uncouple

We often hear from clients that they would prefer to avoid battling out their separation in court, due to the emotional and financial costs. On top of dealing with the breakdown of a relationship, the prospect of having to go to court is stressful for many. Unless they have already been through a divorce, the experiences of friends and family, and movies and other fictional depictions of divorce, are likely to reinforce this viewpoint.

This negative perception of divorce is enduring. Indeed, it's not a situation anyone chooses to be in, and once in that situation, most people want to escape it as quickly as possible. However, that is not always easy when caught up in divorce litigation, partly because family courts struggle to offer a suitable level of service, due to limited funding and a huge volume of demand.

The National Statistics Family Court Statistics Quarterly January to March 2021 show divorces take on average 51 weeks to complete. Private children cases, where parents are in disagreement about arrangements for their children, also take on average 40 weeks to get a final order.

There are other ways to address the financial and family aspects that arise from separation, and it is encouraging to see the availability of alternatives to court-based divorce has grown over many decades. Unfortunately, it can sometimes be difficult for people to know what route is best for their situation.

Opting out of court

Because a divorce and financial deal must be finalised by a court, and the traditional way to deal with a divorce is the court route, conversations with clients are often framed around 'opting out of court' rather than just discussing how a person wants the situation to be managed.

Most people prefer a route that gives them more choice and flexibility, at less cost. Why wouldn’t they? For many that means not being in the court system. And if that can be achieved, the knock-on effect is that some of the strain on the system can be relieved, so cases which need to be in court are prioritised, ensuring the right kind of legal help is delivered as needed.

Opting out of court means more than just avoiding some of the administrative challenges of negotiating and finalising a separation. There is a tension in court-based separation as each of the couple are required to instruct their own legal team or to represent themselves. The couple are 'pulled further apart' at the very part of the case created to support negotiation, by being compelled to put in positional settlement proposals.

In practice, this usually involves negotiations starting either at the top or – depending on what side you are on – the bottom end of a financial scale which are then whittled away to a mutually agreed point. As might be expected, this creates confrontation, which pits the two sides against one another, with the sense that only one side can really 'win'.

Historically, this has been further exacerbated by the need (certainly in England and Wales) for a reason to be cited for divorce – usually blame of some kind, such as infidelity or 'unreasonable behaviour'. Fortunately, this will soon be removed when divorce law is reformed, as it only added more bad blood within an inadvertently divisive system.

Understandably, many modern couples, especially those with children, don't want to opt for this kind of divorce, knowing they will need to continue to communicate and cooperate for many years. Nowadays, couples often realise looking to punish and hurt each further will only bear more emotional and financial consequences.

What are the 'other routes'?

Mediation, arbitration, neutral evaluations and collaborative law all meet the demand for options which seek to minimise the tension and allow couples a wider range of ways to conduct their divorce. Public awareness of these options is growing, but there's still a way to go.

While 'court alternatives' have the backing of the judiciary (and some have received support from governments) it remains confusing for couples to navigate their way through the options. Responsibility for informing clients about the full spectrum of options available – and how those options work either separately or together – falls on us, the practitioners.  

As with any choice, there are distinct benefits, yet certain limitations, connected to each route, which means it is important we guide people to create the bespoke route that works for them. In the same way as when dealing with financial claims, the outcome is determined by how the law applies to each couple's particular facts and circumstances.

A few years ago, after a failed mediation, I suggested to the husband’s solicitor we engaged in attended mediation, which was to be conducted in the style of commercial mediation (but without confidences being held). But if that failed, we would instruct the mediator to give us a neutral and non-binding indication of outcome. We set up the process to be done in one day. Mediation failed (which was to be expected due to the previous failure) but we settled a few hours later having been given the neutral indication.

This experience made me think more about how we work and so we took a step back to look at various options in turn, to consider whether there was value in taking the best features of certain options and creating a new model that could offer the flexible break-through that modern couples needed.

That was how ‘Uncouple’ was created. It's a model which provides a couple with choices at each stage of the process about the route to be taken. However, crucially, it is structured to support non-positional decision making by the couple – if they can't reach an agreement, they can be given direction on outcome or have the issues decided for them.

They are guided through the whole process by one independent mediator facilitator. This individual doesn't provide legal advice to either party – they are there to act neutrally and to assist the couple in gathering the relevant information to make informed, fair decisions with legal input as needed, or to have the issue decided. By working with both parties, the mediator facilitator's role is to narrow their areas of dispute and come up with a route to a fair resolution.  

Not every process will run smoothly, and if an issue becomes intractable, either about a process point or the couple can't get to a final deal, they can opt to have the issue determined to break through the deadlock. In my practice, we are fortunate as we have a large and team of partners who have qualifications in all the forms of non-court routes, so we can do these stages as one in-house team, to be used as needed or we can work with other practitioners. 

Of course, this approach will not fit everyone, and there are couples who prefer the court process for their divorce. But therein lies the need for us to assess the best approach at the outset, as each couple has their own particular needs.

People going through divorce are often in a situation where they feel their choices are limited and so they need ways of resolving their disputes that gives them those choices and which also doesn't inflame the situation.

We envisage models like ‘Uncouple’ becoming much more widespread. Family law does not stand still and has always evolved. The more we can help couples to not only get to a fair outcome, but in a way that gives them more control, the better all round for their changing families.

Claire Blakemore is a partner at Withers LLP withersworldwide.com/en-gb/

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