Case Studies

Tony and Elaine had been married for 16 years and have one daughter. They were now filing for divorce but wanted to ensure the process was amicable and didn’t affect the life and schooling of their daughter

• They had already agreed that Dad would move out and rent somewhere once everything had been agreed, and their daughter would spend two nights per week with him.
• They had a desire to remain amicable and didn’t want to involve solicitors due to bad experiences of friends, they wanted to move through the situation in the best manner, ensuring they could both afford to live moving forwards.
• Mum had a tight budget and was also concerned Dad would struggle to rent locally. They also had not decided who would petition for divorce and on what grounds

• Through mediation they were able to agree the financial disclosure and agreed the house would be sold in 5 years’ time.
• They produced a full parenting plan, laying out how they wished to raise their daughter whilst living separately.
• They both agreed to keep their pensions but offset the difference in a lump sum to mum, to achieve a fair split on their assets.
• The mediator suggested mum might be entitled to universal credits, helping her budget and helping make the process affordable.
• They decided that Dad would divorce mum on grounds of unreasonable behaviour, due to them not living apart for 2 years and they discussed the grounds to be used, so they were not a shock when seen on the divorce papers.
• They took out a gold divorce package, where they had a solicitor each to process the divorce and a clean break financial consent order.
• An open financial statement and memorandum of understanding was produced, and a legally binding consent order was finalised at court.

This was an interesting case as both parties wanted to be amicable but also wanted to protect their own future interests. They did not have a lot of spare money in the pot and the gold divorce package, allowed them to budget for the legal fees and mediation fees – whilst ensuring they had a solicitor each to manage the divorce and consent order.

The mediator took the clients through a process that works for the majority of clients and even included the grounds for the divorce, which had been a sticking point with them.

Bill and Alice were married for 6 years and had two young children. Mum suspected dad of cheating and this was causing high tensions, they had been separated for 6 months but now wanted to file for a divorce.

• Dad had already moved out and started a new relationship, which caused further tensions with mum
• It was already agreed that mum would look after the children, with them seeing their dad twice per week.
• Dad wished for the home to be sold with all equity split 50/50, due to his involvement in the deposit and mortgage of the property (dad believed it to be unfair for him to rent and be tied into a property he did not live in).
• Mum was worried about affording the mortgage and other bills, she wanted to live in the home until the children have grown up and wanted a financial contribution for the home and supporting the children from dad.

• They both agreed to try family mediation, with a financial disclosure then being agreed and their positions were ascertained. They were quite far apart.
• The mediator looked at aiming to maximise both their incomes, however after reviewing information they could still not decide (but did not want the cost of a legal battle).
• They decided to choose an independent barrister review

Barrister Review

• An overriding principal was around the children’s need to be housed.
• The home equity was £120,000 (not leaving enough for to be housed after the sale) – Dad could get a further mortgage however mum, as the main carer, couldn’t.
• A likely ‘Mesher order’ would have to be put in place – Dad will rent and the home will be sold when the youngest child turns 18 (or if mum remarries, dies or cohabits for more than 6 months the home can be sold – or anytime by mutual consent).
• It was advised that once sold the home be split 60/40 in favour of mum (due to cost of raising children and incapacity to work)
• Dad had a surplus on budgets vs. Mum. Therefore, Dad would pay 50% of mortgage to cover this shortfall under a spousal maintenance agreement.

Mediation appointment 2

• Disagreements were apparent from both mum and dad after this review
• Dad was still adamant about the 50/50 split in the sale of the home, compensating him having to rent for so many years and difficulty in getting a new mortgage whilst he remained on the old one.
• Dad agreed to pay more spousal maintenance, to mum to cover bills and mum agreed to split the equity in the home once sold on a 55/45 basis.
• This was all written into a memo of understanding and submitted to a solicitor to draft into a consent order and was later accepted by a judge and made legally binding.

This was a fascinating case, as the clients simply could not agree. Both parties had tried mediation as they wanted to show the court they had acted responsibly and reasonably but suspected they may end up at court. As an alternative, the mediator suggested the barrister review. This helped them both see how the law works and what would be a likely outcome were they to go to court. It helped focus their minds and they were able to reach an agreement between them.

This would have cost them tens of thousands in legal fees and they would most likely have ended up with a similar outcome. But they managed to keep that money in the family pot, which was a credit to them both.

Harry and Ellen were embroiled in a bitter divorce. Both were now living separately however they couldn’t agree on a parenting plan for their two children aged 12 and 14.

• After many arguments mum applied for a child arrangements order, but as she had to attend a MIAM she decided to give mediation a go.
• Dad agreed, however he wanted to be in separate rooms (shuttle mediation)

Mediation 1

• After two appointments they established that they were just not going agree on the arrangements being set out. Dad wanted a 50/50 parenting arrangement, alternating each week between parents.
• Mum said she was only prepared for the children to spend a maximum of 3 nights per week with dad
• They did agree that the children should be included in the process and the mediator wrote to the children – called Child Inclusive Mediation.
• Both children expressed interest in staying with mum during the week, especially during term time, this upset dad and he terminated the meetings.
• He submitted a child arrangements order to court, requesting a 50/50 parenting plan

Court

• The legal process impacted negatively on their relationship further. They attended two separate hearings at court. Cafcass were instructed to make reports on the parents, as well as interview the children
• The children told the same as they had told in mediation and were upset about having to repeat their views to another professional.
• At the second hearing the judge was quite scathing on dad for bringing the matter to court and not going with his children’s wishes – he directed them back to mediation.

Mediation 2

• They returned to the same mediator as before and picked up where they’d left off
• It was agreed the children would spend time with dad every other weekend, and they would share holidays equally – based on what the children had expressed as their wishes.
• This was drafted into a parenting plan and the court later made this into a legally binding child arrangements order by consent.

We included this as a real-life case study, as it shows the importance of considering the children’s wishes in any parenting arrangements. The court do not want to be making decisions on how parents raise their children and will always want to see alternate methods of dispute resolution have been attempted, where appropriate.

The law if focused on the needs of a child and when they get to a certain age, their input into the outcome is usually sought by the judge. In this case, their views had already been shared, but disregarded by the father. The judge was quite scathing that the case had been bought before him and that the children had been asked to reiterate their views to Cafcass.

With the judge’s words still ringing in his ears, the couple returned to mediation and were able to agree a really good parenting plan that has now set them up for their future.

Josh and Bethany had separated during lockdown and had one child. They both wanted to move forward amicably but couldn’t talk to each other without arguing

• Mum had moved some distance away with their child and this was causing serious tensions between mum and dad, as dad and the child were both missing each other considerably.

Mediation

• They had one session of mediation together, and by talking in a safe and controlled environment, both mum and dad were able to set aside their differences, and talk about what was good for their child
• The mediator agreed a routine to allow for the child to see his dad, and he gave mum the reassurances she needed, so that she was happy with the agreement reached.
• Due to the distances involved as well as this being through the coronavirus lockdown, a face-to-face meeting was not possible, and online mediation really made the difference – it reduced the tension of them being in the same room together.
• After both agreeing to the routine plan a child arrangements plan was drafted by their mediator and they were able to resume communications in a controlled manor moving forwards.

We included this as a case study as the couple were able to reach an agreement in just one joint mediation session. There issues were relatively simple to resolve – they just were unable to reach this agreement without a suitably experienced third party to help them.

Once they had the chance to talk and more importantly listen to the other parent in a controlled environment, they could see the way forward quite easily. Reaching an agreement in one session is rare for parenting – the average is 2-3 sessions, but we are always happy when we have helped clients reach an agreement as quicky and amicably as this couple.

Danni and Jake had only been married for a few years and did not have any children between them. They both realised quite early in their marriage that it was not going to work and had been a mistake. Having started off by arguing and threatening legal action, they realised that they would be better of working together to finalise their divorce and allow them both to move on.

They had reached a general agreement on the financial arrangements between them but wanted an independent expert to sense check it. Danni had been to a solicitor who had tried to persuade her to fight for a lot more of the assets and that put her off using the solicitor.

They had a free consultation between them and both agreed to use a facilitation package to get their consent order.

• They sent through their financial disclosures and overview of their agreement to their facilitator, who went through it before their meeting and prepared notes for the facilitation session.
• During their 90-minute meeting, which was held online, the facilitator checked they were happy with the financial disclosure and with the arrangements for the property
• They had not discussed spousal maintenance, pensions or their liabilities, so the facilitator took them through the options and they agreed to keep all other assets and liabilities in their own name.
• The facilitator produced a financial statement and memorandum of understanding, which the couple signed off once they had a chance to consider it.
• We instructed our experienced family law solicitor to draft their consent order, whilst the couple agreed to manage the divorce themselves online through the Government portal.
• The court asked a couple of questions from the solicitor which they dealt with as part of the fixed fee negotiated consent order package.
• Their consent order was sealed by the court and became legally binding.

This was a great example where clients wanted some help to get a fair agreement but did not want to use separate solicitors due to the cost and the nature of their divorce – they were amicable and did not want to fight each other with solicitor letters and demands.

Most solicitors can only deal with one client, but the facilitation route allows an independent expert to work with clients together to finalise a fair agreement, whilst making sure everything the court will want them to have considered has been taken into account. Finally, we instruct a solicitor who drafts a consent order and also deals with all communication with the court – all for a set fee.