Do I need to go court if I want to be divorced?
23rd November 2015
The annual Resolution Family Dispute Resolution week is upon us again! Although Resolution is the organisation of Family Lawyers south of the border, we keep close contact with them and their members given the number of clients we have who are from, live and/or work in, England and Wales (where the law is very, very different). We are also very keen to support the work that they continue to do to promote alternatives to litigation, in family law matters.
Research is about to be published about outcomes in litigated, financial cases in Scotland, which is timely, as we focus for a week on other forms of dispute resolution (DR). The research focused on (mainly reported) cases- cases litigated over the last 30 years, since the Family Law (Scotland) Act 1985 came into force. This study is a follow up to work done previously by the same authors on the use made of Minutes of Agreement- ie. looking at outcomes in matters settled by agreement, outwith the court process. The study was undertaken by Jane Mair of the University of Glasgow, School of Law with support from Fran Wasoff and Enid Mordaunt from the Centre for Research on Families and Relationships at the University of Edinburgh. A number of Solicitors at SKO assisted with the research by participating in a detailed interview which included a vignette designed to elicit how we advise clients (and, indeed, what we advise them!). In this stage of the research 29 senior practitioners were involved- 18 solicitors, 6 advocates and 5 members of the judiciary.
The full report will be published shortly, but in advance of that publication a dissemination event took place in Edinburgh on 18th November 2015- a fascinating taster of the full report to follow. Because many of the outcomes of this research from litigated cases bear on the process of reaching a resolution to financial matters we thought that we should share one finding (and our thoughts thereon) with you each day this (family dispute resolution) week:
So, finding number one:
1. A tiny proportion of cases are litigated to a final conclusion in Scotland:
OUTCOME: in the time since the Act came into force there have been 334,000 divorces in Scotland, but less than 200 reported decisions. To undertake the research the authors had set as their statistical sample the figure of 200 court decisions to be reviewed. They found that in 30 years there haven’t been 200 reported cases, and found that they had to bolster the number of reported cases to be reviewed by looking at unreported cases referred to in those judgements.
OUR EXPERIENCE: this very much chimes with our sense that the vast majority of divorces in Scotland are resolved extra judicially- not always using mediation, collaboration or arbitration though. The most common way to resolve matters is with solicitor negotiation: you instruct a solicitor to work with you, give you advice and negotiate on your behalf. Quite often this is done against the backdrop of court proceedings- sometimes that is useful and helpful. But the important thing to take from this research (and our experience) is that very few cases actually proceed to a final court hearing (or Proof, as it is known in Scotland) and it is rarely too late to resolve things by agreement.
