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Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

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15 October 2011

Why take the risk?

Mahie Abey
I really do question why anyone would want to go to court. Looked at rationally it is barking mad. You pay solicitors, and possibly barristers, loads of money to advise you, as does your ex-partner then despite that advice you are unable to come to an agreement, so you pay them even more to represent you in court, where either you are will come to an agreement anyway (which is what you should have done earlier) or   if you can’t come to agreement you pay the lawyers even more to let a complete stranger decide your life. Don’t get me wrong I, and the rest of the legal profession, will happily continue taking your money but do you really want to keep giving it to us?!

Now I appreciate it is not always as cut and dried as that, and there are lots of different and sound reasons why people go to court. But what I will never understand is why any finance case goes to a Final Hearing. Why would any sane and rational person find themselves in that position?

The main problem is the judges. Unless you are very wealthy, or your case particularly complex, your case will be decided by the lowest level county court judge – a District Judge. There are very many great District Judges but there are equally some awful ones. If you ask any local solicitor anywhere in the country, with few exceptions, they will tell you that at their local court there is at least one poor judge and in the bigger court centres a number. So what that means is that if you go to a Final Hearing you are effectively buying a raffle ticket. If your number comes up you get one of the good judges and if it doesn’t you get one of the poor ones. Why would you do that? I just don’t get it.

The other point is delay. It takes an age for a case to work its way through the court system and so it is very possible, if not likely, that you will be in year 2 of your divorce before it is concluded. The court system is creaking and understaffed. I will give you an example that happened to me last month at a major regional court centre. At the first hearing the District Judge listed the case for a further hearing. He allowed the parties to provide ‘dates to avoid’ for their barristers so that they could ensure continuity of representation, which is vital. The court did not then look at the dates to avoid, and listed the case on a date in December that my barrister had already said he could not do. On the day I got the listing I telephoned the court and pointed out the error. The court said they would re-list the hearing. I chased them on 3 occasions over the next 2 weeks. Eventually I was told that they would probably get round to re-listing my case in the next 2 weeks. Therefore they would only be able to deal with the admin process of giving me a new date a month after the original listing - which would mean a date for this hearing in January or February, some 4 or 5 months after the initial hearing! Bonkers.

Surely it must be better to be in control? My view is use every possible avenue of Alternative Dispute Resolution (ADR) available. Of course try Intelligent Divorce which I think is a great way of reaching an agreement with your ex-partner. But, if you don’t fancy that, try mediation, Collaborative Law or round table meetings using solicitors (or barristers in the more complex cases). Anything really, but stay away from court if you can.