Frequently Asked Questions
By Simon Sugar, Barrister, 1 Garden Court
Q. I have decided to separate. What is my next step?
A. Think again. Explore http://www.relate.org.uk/ and consider whether the relationship is truly over or whether you want to see if it can be rekindled. If the relationship is at an end you need to think about how best to resolve the issues that are inevitably going to arise on separation.
Q. I am confused. There seem to be so many different ways to resolve the issues that have arisen following my family breakdown. Do I choose mediation, collaboration, arbitration or litigation? Do I represent myself or do I take advice and seek representation from a solicitor or should I go directly to a barrister for advice and representation? There are so many options. How do I know what are the right options for me?
A. That is an excellent question. Unfortunately, without the benefit of hindsight, it is not possible to provide a definitively correct answer. Read up about the different types of dispute resolution. See which one you think best fits your circumstances. When you are making your mind up, there are I think two main factors to consider. Firstly, the extent of your combined resources and secondly, how difficult you believe your former partner will truly be. Mediation and collaboration are consensual processes; arbitration and litigation less so. Mediation and collaboration tend to be cheaper than arbitration and litigation; although not always. Having a solicitor and a barrister advise and represent you is obviously more expensive that having either just a solicitor or just a barrister. To find out about family solicitors visit http://www.resolution.org.uk/. To find out about family public access barristers visit http://www.barcouncil.org.uk/instructing-a-barrister/public-access/.
Q. My friend has recently got divorced. She has told me about the order she received in her case. Will I get the same order?
A. Not necessarily. The facts of every case are always different and as a consequence the outcome in one case is unlikely to be exactly the same as the outcome in another case.
Q. I have read and been told that the outcome of my family dispute is based on the exercise of judicial discretion. I don’t really understand what this means. Surely the outcome is either fair or it isn’t?
A. Fairness, like beauty is in the eye of the beholder. Different judges will have different perceptions of fairness. That is why in a family case it is frequently not possible to advise on an absolute outcome. The best advice that can be given is frequently referable to a range of possible fair outcomes.
Q.I am not married but I have lived with my partner for 10 years prior to the breakdown of my relationship. I have heard that I am a common law wife and the law will treat me as if I were married. Is this correct?
A. Sadly you are completely wrong. The existence of a common law wife as a legal relationship that gives rise to rights and obligations is perhaps the most widespread of all legal misconceptions.
Q. How long will it take to resolve my dispute?
A. Again, no one can give you a definitive answer. It all depends. It depends on the issues being dealt with, it depends on the method of dispute resolution that you have chosen and it depends on whether you can reach a compromise. In general, if you have to go to court on both children and financial matters and do not settle either case but end up going to trial, I would guess that a period of around 1 year from the issue of proceedings to their conclusion would not be unusual.