Self-defeating litigation

In the recent reported case of RM v TM a divorcing couple spent close to ￡600,000 on legal fees. By the end of the case they were each left with just ￡5,000 in liquid assets.

This is the introduction to the Judgement:

The Judge concludes:

Whether I find myself representing the wife or the husband in a divorce, almost everyone’s objectives at the outset are the same:

• They want to get through the process as efficiently as possible and minimise legal fees 
• They want an outcome that is fair and reasonable
• They want to protect the children’s emotional well-being

This is how I advise my clients at the beginning to help them to achieve the above objectives:

1. Take protective steps to pre-emptively protect your legal position, then pause. Replenish yourself before embarking on a process that could prove to be irreversible. Poor decisions are made when we are drowning in stress and anxiety and anger. Give yourself sufficient time to take advice, think deeply and carefully, and make well informed decisions with a clear mind.
2. Attend individual and couples counselling before making any definitive decisions. You need to know that you did everything in your power to save the relationship. If the relationship cannot be saved, attend individual and couples counselling anyway so that you can work together to manage the fallout of the divorce and agree how the children will be protected.
3. Maintain your physical and mental health at all times. Build resilience and find healthy coping mechanisms that work for you so that you can stay on track if the process becomes bumpy.
4. Educate yourself about the divorce process. The greater your understanding, the less you need to pay your lawyer to repeat information that is already in the public domain. This report produced by the Family Justice Council is a good start: https://www.judiciary.uk/wp-content/uploads/2016/04/fjc-sorting-out-financial-needs-april-16-final-revised-nov17.pdf
5. Ensure that you are using a lawyer whose philosophy is to approach matters objectively and constructively. Then listen to and act on their advice. It is counter-productive (and expensive) to treat your lawyer as a hired mercenary to attack your spouse. Your lawyer can and will be assertive on your behalf when required, but undirected aggression achieves little except to entrench positions and increase costs, which makes settlement close to impossible.
6. Enlist the help of a mediator where appropriate. A mediator offers a safe, neutral environment for the parties to find agreement with minimal input from the lawyers. However, you do still need to retain legal advice in the background to give advice on specific points of law and the theoretical range of realistic outcomes.
7. Be your own paralegal to keep legal fees contained. Prepare a careful chronology of the marriage and prepare comprehensive and accurate financial information as directed by your lawyer. Learn to organise your digital documents into neatly labelled pdfs and sign up to dropbox so that you can share the information easily with your lawyers.
8. Provide full and frank disclosure in Form E. The English court process has robust mechanisms to force the parties to provide disclosure anyway. Failing to engage with the disclosure process is a futile act that achieves little but to drive up costs, undermine trust, and delay settlement. However, do take legal advice on how to present your disclosure and in relation to which arguments have relevance to the financial matters. For example, a debate about the treatment of inherited funds is a viable point to make, the general unpleasant behaviour of the other party is not.
9. Negotiate in good faith. Make realistic proposals which meet the needs of both parties and which are pitched sensibly within the relevant framework of law. Positional bargaining is a waste of time and money.
10. If there is a legitimate difference of opinion on a particular matter between the parties and their lawyers, then work collaboratively to choose the most cost-effective appropriate method to resolve the disagreement. Going to court is just one of a number of choices. 

By Sonny Patel

Expatriate Law

[email protected]