Head of Family Law at Howes Percival, Justine Flack discusses the concept of winning and losing when it comes to divorce and what it really means to achieve the best outcome.
When I had a day in court my father would often ask, 'did you win?' My usual response was to tell him that this was family law and it was not about winning or losing, it was about getting an outcome which was right for the family.
Admittedly, sometimes there are days in court where you have a specific application where you will either be successful or not; an injunction, enforcement, changing a child's name etc. However, most of what we deal with in family law is more nuanced and rarely are things so clear-cut.
On an application for financial remedy it's about fairness - to both parties. We need to make sure that they are both able to move forwards. So if the court determines that one party may retain the house but that is only for a period of time or subject to a capital payment to the other party, is that winning?
Where children are concerned we have orders which regulate the arrangements for the children. The focus has to be on the complete arrangement for the child and when they will spend time with each parent. That is often about compromise between the parents and the final arrangements should be based upon what is best for the child so that they are the winner.
It is healthier to view family law in a broader context and in terms of the entire deal. What are the arrangements both financial and practical which can work for both parties and the wider family and which are fair in the circumstances for that family? Talk of winning can polarise people and give a distorted view of fairness. It encourages people to become entrenched rather than considering alternative and sometimes creative solutions.
Our aim at Howes Percival is to work with clients to achieve an outcome where in the end they feel positive - about their financial future, about the arrangements for the children and about where they are personally. Of course we want the best outcome for our clients but it doesn't have to be at the expense of the other party.
The principles which the court uses aim to achieve fairness and this outcome. However, court should really be the last resort. Solicitors who work with their clients to see things in a reasonable way, who are co-operative with the other party and who are focused on achieving a fair outcome for the family can save the stress of court proceedings and the ensuing costs.
We encourage clients to think of other ways of reaching a resolution and we are fortunate that both myself and Amy Walpole are collaboratively qualified. Collaborative law is ideal for parties who can work together and are committed to achieving an outcome which works for everyone. Clients need to go into the process willing to embrace compromise.
Whether collaborative law is right for a client or whether settlement will be reached by negotiation between solicitors or even within the court process, it is going to be more productive and likely to result in a quicker settlement if people avoid adopting the mindset of winning. Aim to be okay at the end and to be able to move forwards as soon as possible.
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