What’s the link between authentic Asian curries and financial resolution? 

Published on 04.03.24
Published on 04.03.24

Upon the breakdown of a relationship, there are many ways for both married and unmarried parties to resolve their financial claims. How do you choose the best way for you?

The level of conflict can determine the method employed to conclude claims. I liken the intensity of disagreement with reference to the number of chillies in an Asian curry. Without seeking to undermine relationship break up with this comparison, the conflict can range from mild to medium to hot and extra hot. Using my chilli/conflict meter, I illustrate how the parties’ relationship and level of conflict can determine the best way forward:

Chilli MeterOptionsConflict meter
MILD1. Parties can negotiate directly.
2. Parties can appoint a mediator (and their own solicitors to advise during the process of mediation).
3. Parties can instruct one solicitor who can act for both parties.
 
If 2 is unsuccessful, the parties can move to 1 or 3, before considering the later options below.
To use option 1, 2 and/or 3, the parties must be amicable and able to communicate effectively with each other. They are empathetic, mindful and respectful of the other. They trust that the other will be or has been transparent and honest about their assets and liabilities. The separation may have been many months or years ago and the parties have a good workable financial arrangement. The parties are physically separated. They have an effective arrangement in place for the child/ren and pet/s. Importantly, there has been no domestic abuse and/or coercive, controlling or other bad behaviour.  A mediator and solicitor is usually appointed in these cases to resolve a few final specific issues because the parties are broadly in agreement.
MEDIUM4. Appoint a shuttle mediator (the parties should appoint their own solicitors to advise during the process of mediation).
5.   Appoint your own separate solicitors, to start solicitor-led negotiations.
6.         Appoint your own collaborative solicitors and negotiate.
Options 4, 5 and/or 6 suits cases where there is some animosity and an element of dispute in relation to financial matters. There is some lack of transparency and honestly about the assets. The separation took place a few months ago and there may be some financial arrangement in place, which is working reasonably. This is not a prerequisite. There is a physical separation, but again this is not a prerequisite. There is a broad arrangement in place for the child/ren and pet/s. There is no domestic abuse or coercive, controlling behaviour (if there are some allegations only options 4 or 5 would be suitable).
HOT TO EXTRA HOT7. Each party appoints their own solicitor, to start solicitor-led negotiations, and/or
8. Each party appoints their own solicitor, to proceed with a court application and/or arbitration if other options have been unsuccessful.
 
Throughout 7 and 8, the parties will continue to negotiate with the assistance and advice of their respective legal teams.
Most parties are suited to options 7 and 8 when other options have been exhausted and/or when there is a high level of animosity, conflict and mistrust between the parties. Generally the parties are unable to communicate with each other effectively. There is little or no transparency of the assets, there is some suspicion about honesty and the accuracy of any financial disclosure. The parties are in a situation where they disagree on most matters in relation finances and children, even after many months and years of separation. The animosity has not abated. There may be some or substantial allegations of bad behaviour/abuse, this is not a prerequisite.

The manner in which a matrimonial dispute will be resolved will be different in each case because every break-up has its own unique set of factors, level of agreement and conflict. The legal profession therefore offers many options to cater for the needs of separating families. Interestingly, the parties may start with conflict that is hot to extra hot and ultimately conclude their matter at a settlement hearing or earlier via negotiations, thereby reducing the conflict and pushing them into the mild section of the chilli meter. It is important to adapt the approach to settlement throughout the process depending on the heat of the chillies; the process does not need to remain within one option. Parts of the dispute can be negotiated, mediated, arbitrated and/or adjudicated.

Once you know what is best for you, I set out how to proceed with each option and the role of each person appointed:

ProcedureRole
Negotiating directlyThe parties should prepare and agree a schedule of assets and liabilities, providing any financial documentation they require. They can use the schedule as the basis of an agreement for the division of assets. The parties should obtain tax advice, where necessary. The parties can then instruct a solicitor to draw up and file the agreement (order). Once the order is approved by the judge, the order must be implemented.
MediatorThe role of a mediator is to facilitate an agreement, not to advise. The parties are placed in the same room. It is usual for each party to instruct a solicitor to be advised during the progression of mediation and/or be present in the mediation.
Shuttle mediationThe parties are placed in a separate room and the mediator shuttles back and forth. This works well when there is conflict, but the parties are willing to mediate. A shuttle mediator has the same role as a mediator and is it the norm for each party to also appoint a solicitor.
Appointing one solicitor
or
solicitor-led negotiations
The parties appoint their own or a joint solicitor, usually upon the recommendation of a friend or family. The solicitor/s will obtain financial disclosure from both parties and then seek to negotiate a settlement, advising throughout and seeking an outcome in accordance with the parameters of the law.
Collaborative solicitorEach party appoints a solicitor, and all parties work together to reach an agreement. If is effectively a team effort, with legal advice. The matter is usually resolved with face-to-face meetings, with each party given their own and joint legal advice.

To find the most suitable mediator and/or solicitor, please do not hesitate to contact the author at [email protected]

If a settlement is reached, an order is prepared and filed with the court. In the absence of an agreement, there are further options to resolve matters using the court procedure, arbitration and the private appointment of a solicitor or barrister to adjudicate the matter. Again the correct approach can be determined by the level of conflict.

Teena Dhanota-Jones is a trained mediator, collaborative solicitor and she also acts for both parties. The family department at Portner offers several options to clients to conclude their matter as the team is aware that each client requires a unique, tailored approach to settlement.

If you require any further information about divorce, financial settlements on divorce or any other family matter, please contact Teena Dhanota-Jones at [email protected].

Disclaimer: The above is merely general guidance and should not be relied on as formal advice. We suggest you take professional legal advice before taking any action in relation to the issues discussed above.