When a relationship comes to an end, there are often two separate processes to deal with. The first is the divorce, which legally ends the marriage. The second is reaching agreement about what happens to your finances, property and, where relevant, arrangements for your children.
For many separating couples, family mediation can provide a constructive way to discuss these issues and reach an agreement without asking the court to make decisions for them.
Where an agreement is reached about finances, a consent order can be used to turn that agreement into a legally binding court order.
This article explains how divorce, mediation and consent orders fit together.
Starting the divorce
In England and Wales, you can apply for divorce either jointly with your spouse or as a sole applicant.
The divorce process is based on the irretrievable breakdown of the marriage. You do not have to prove that either spouse was responsible for the breakdown.
The divorce process itself, however, does not settle your financial arrangements or decide where children should live or how they should spend time with each parent.
These matters need to be considered separately.
What happens to your finances?
Financial issues following separation can be wide-ranging. They may include:
• The family home and mortgage
• Other properties
• Savings and investments
• Pensions
• Businesses
• Debts
• Lump-sum payments
• Maintenance
It is important to consider the overall financial position rather than looking at individual assets in isolation.
For example, one person may retain the family home while the other receives a greater share of savings or pensions. Mediation can provide a setting in which different options can be explored.
How can family mediation help?
Family mediation is a process in which an independent mediator helps separating couples discuss issues and explore possible solutions.
The mediator does not take sides and does not decide what either person should do. Instead, they help you communicate, identify the issues that need to be resolved and consider different options.
Mediation can cover both financial matters and child arrangements.
It can also take place in different ways, including face-to-face meetings, online mediation, shuttle mediation and hybrid mediation.
The MIAM
The process normally begins with a Mediation Information and Assessment Meeting (MIAM).
A MIAM is an individual meeting with the mediator. It provides an opportunity to explain your circumstances, find out more about mediation and consider whether it is suitable for you.
If mediation is appropriate and both people are willing to participate, further sessions can then be arranged.
You can also obtain independent legal advice alongside mediation. Your solicitor can advise you about your legal rights and the implications of any proposed agreement, while the mediator helps you negotiate.
Reaching an agreement
If you reach an agreement during mediation, the mediator will record the proposals you have agreed.
It is important to understand that an agreement reached during mediation is not automatically legally binding.
For financial matters, you will normally need to consider whether the agreement should be converted into a consent order.
What is a consent order?
A consent order is a court order setting out financial arrangements that you and your former partner have agreed.
It can deal with matters such as:
• The sale or transfer of the family home
• Division of savings and investments
• Pension arrangements
• Lump-sum payments
• Maintenance
• Other financial assets and liabilities
• A clean break, where appropriate
The proposed order is submitted to the court for approval. In an agreed case, there will normally be no need for you to attend a court hearing.
Once approved, the consent order becomes legally binding.
When should you deal with the consent order?
The timing of your financial settlement can be important. A consent order can normally be submitted once the conditional order in the divorce has been made. The final order then legally ends the marriage.
It is generally sensible to consider your financial settlement before the divorce is finalised. This can be particularly important where there are pensions, property or other substantial assets involved.
You should obtain independent legal advice about the appropriate timing for your circumstances.
Divorce does not automatically settle financial claims
One of the most important points to understand is that getting divorced does not automatically resolve financial claims between former spouses.
Even if you have agreed between yourselves how your finances should be divided, it is important to consider whether that agreement should be formalised through a consent order.
A properly drafted financial order can provide certainty about the arrangements you have agreed and, where appropriate, a clean break can prevent future financial claims.
How the process fits together
For many couples, the process may look something like this:
Separation - either under the same roof or at different addresses
↓
MIAM - beginning the mediation process. This can be before or after you have applied to the court for a divorce
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Family mediation - a short series of meetings to discuss the issues and agree some solutions
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Agreement about finances and/or children - the mediator provides a written record of your proposals
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Financial agreement converted into a consent order
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Conditional order - Twenty weeks after the application for the divorce is acknowledged
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Consent order approved by the court
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Final order - ends the marriage and the terms of the consent order can be enacted
The exact process will depend on your circumstances, and not every couple will follow the same route.
How Hampshire Mediation can help
Separation and divorce can involve difficult decisions about your home, finances and children. Family mediation can provide a structured environment in which those issues can be discussed constructively.
Hampshire Mediation helps separating and divorcing couples work through issues concerning family mediation, divorce, separation, child arrangements and financial settlements.
We offer face-to-face, online, shuttle and hybrid mediation, depending on what is appropriate for your circumstances.
If you are considering separation or divorce and want to understand whether mediation could help, a MIAM is a useful place to start.
Contact Hampshire Mediation to arrange a MIAM or discuss your circumstances.
This article provides general information and is not intended to be legal advice. Divorce and financial settlements can have significant legal consequences, so you should obtain independent legal advice about your individual circumstances where appropriate.