Marital dispute resolution: progress not perfection
Estimated reading time: 4 minutes
Many complain about the effect of a messy divorce, the stresses and challenges this poses to the family post separation. But let’s take a look back in history and see how marital dispute resolution was dealt with in the Middle Ages.
A brief history of marital disputes
In Germany, it appears that historically, a more direct approach was taken by spouses. Seemingly husbands and wives could fight in a marital duel to legally settle their disputes.
Trial by combat: how medieval couples settled their differences
This was not a level playing field: the man had to fight in a hole with one arm tied behind his back (note: we still hear that refrain today), while the woman was allowed to move freely within the arena but had to wear cloth containing weights. Usually, the wife was armed with a sack filled with rocks, while her husband was provided with three clubs. However, if he touched the side of the hole during combat, he had to forfeit one of his clubs.
Married couples were usually given a month or two to settle their differences prior to combat. The duel would only take place if they could not compromise and make peace with each other. If the husband lost the duel, he would have his head cut off. If the wife lost the duel, she would be buried alive.
Divorce without going to court in England and Wales
Thankfully, we have found better ways of marital dispute resolution since then. While the current recourse through the courts for separating couples is not without its problems (and it can often feel like you have one hand tied behind your back), there are alternative forums and with reliable support and advice, you and your ex can make it through your separation and reach a financial settlement, or agree appropriate arrangements for your children, without killing each other.
If you would like to learn more about how to have a better divorce, please contact one of the team.
Frequently asked questions about divorce without going to court
Can you get divorced in England and Wales without going to court?
In most cases, yes. The divorce itself, the legal process of ending the marriage, can be completed entirely online via the government's digital service, without either party needing to attend court. However, if you and your spouse cannot agree on finances or arrangements for your children, court proceedings may become necessary. The good news is that there are a few alternatives worth exploring first.
What are the main alternatives to going to court?
There are several routes that separating couples can take before considering litigation. Solicitor-led negotiation, where your respective solicitors communicate directly to reach an agreement, is often the most straightforward starting point. Divorce mediation involves a neutral third party helping both parties work towards an agreement, though it requires both parties to be willing and is not always suitable where there has been domestic abuse or a significant power imbalance. Arbitration and private Financial Dispute Resolution (pFDR) hearings are also available and can resolve financial matters significantly faster than the court system. In some cases, one solicitor can act for both parties where there is a substantially shared interest in reaching a fair outcome. This approach is known as the Single Lawyer Solution.
Do I need a solicitor to divorce without going to court?
Not necessarily, but having legal advice is strongly recommended. A solicitor can help you understand your legal position, negotiate on your behalf, and ensure that any financial agreement is recorded in a consent order, which is essential for the agreement to be legally binding and enforceable. Instructing a family law solicitor does not mean matters need to escalate or lead to court proceedings.
What is a consent order and why does it matter?
A consent order is a legally binding document, approved by a court, that records the financial agreement reached between divorcing parties. Even where a couple reaches an agreement entirely outside of court, a consent order is needed to make that agreement enforceable. Without one, either party could, in theory, make future financial claims against the other, sometimes many years later. It is one of the most important steps in finalising a divorce financially, and is something a family law solicitor can help you put in place.
How long does it take to reach a financial settlement without going to court?
This varies considerably depending on the complexity of the finances involved and how cooperative both parties are. In straightforward cases where both parties are motivated to reach an agreement, a financial settlement can sometimes be reached within a few months. Where matters are more complex, or where one party is less engaged, it may take longer. In general, non-court routes tend to be significantly faster and less expensive than contested court proceedings, where delays in the family court system mean hearings can take many months to be listed.
