22 August 2017
What Can I do if my Other Half Won’t Agree to a Divorce?
The case of Tini Owens will have struck a chord with many who have found themselves trapped in an unhappy marriage where one partner wants a divorce, but the other won’t agree.
While family judges will often approve an application from someone who has been subjected to unreasonable behaviour or whose partner has been unfaithful, for example, if the courts won’t grant a divorce then the law states couples who don’t both consent must wait five years.
For those resigned to just sitting it out, however, there are other options and more and more people are taking advantage of methods like mediation in order to resolve matters before they reach the courts.
These options may not be for everyone, but not everyone wants or can afford a lengthy legal battle so they are at least worth consideration.
How Does Mediation Work?
‘I didn’t go to mediation because I didn’t want to get back together,’ is something we hear all too often. Many people mistakenly think mediation is relationship counselling, when in reality it’s just designed to help couples who are splitting up to reach an agreement amicably.
The role of a mediator – often a family lawyer – is to find out what the issues are and provide people with information, but not legal advice. For example, a mediator can explain what spousal maintenance is, but not what figure someone should be seeking – although either party can seek legal advice outside of mediation sessions.
Some mediators are specially trained to deal with children so if, for instance, the dispute is over where a child will live they can speak to the child on their own to gauge their views.
Pretty much anything can be discussed in this process, which is very much driven by the couple themselves.
What If We Do Need Extra Support?
People are often at very different stages when they come to see a divorce lawyer. While one party may have known the marriage was over for some time, it may have come as a surprise to the other who is still at the grief stage. They may need someone to speak with to try and come to terms with that and that’s where a divorce coach or family therapist can be useful.
Both can be involved at any stage of the mediation process and can meet with people individually or together. Family therapists can be particularly helpful if there are children involved who are struggling to deal with the break-up.
I Don’t Want To Mediate – Do We Have To Go To Court?
Many separating couples do not feel mediation is appropriate as they wish to have their lawyer present, but don’t want to end up in court. Another option is collaborative law which requires both parties and their lawyers, who will have been trained in this area, to work together to reach an agreement before it reaches that point. Both clients and lawyers have to sign up to the process and if an agreement isn’t reached then the clients must find new legal representation, a way to help everyone stay committed. Whereas a mediator can only provide information, a collaborative lawyer can offer legal advice. This moves away from the ‘my client, your client’ approach to a much more collaborative way of working to find the best solution for the whole family.
Sara Ismail is a family lawyer who is trained in mediation and collaborative law.
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