The Government appears determined to reduce the cost of financial relief proceedings arising from divorce by an increasing focus upon Family Mediation.
I accept that I am a solicitor and may, to an extent have a vested interest. However, I believe that an increasing focus on Family Mediation may result in lack of justice. Mediation will not likely involve any enquiry into the truth, or otherwise, of the
stated/disclosed financial position of the husband (or wife). In family mediation the husband and wife's stated/disclosed financial positions are likely to be taken as true. Accordingly, in family mediation, husband and wife may come to a decision upon finances
based upon each other's stated financial positions. Believe it or not, husband (and even wife) may not be telling the truth!
So, financial settlement terms will be agreed between husband and wife based upon positions which they have disclosed to one another and to the family mediator. The parties will then visit their own solicitors and ask for an Order to be made in the agreed
terms. Having reached agreement, the parties are most unlikely to want to spend money upon their solicitors. Accordingly, the instructions that they will deliver to their solicitors are likely to be in terms of "get it concluded."
In my opinion, it is a recipe for deceit. By going through Family Mediation, the husband (or wife) may be encouraged not to tell the truth upon their financial position, knowing that there is unlikely to be any enquiry or any investigation.
Bank statements and credit cards are unlikely to be looked at in any detail. If the husband has opened another account and not disclosed it, that is unlikely to be revealed.
Family Mediation may be the appropriate way forward when assets are few and far between. However, I do not believe that Family Mediation is necessarily the way forward when there is wealth. Yes, solicitors are not cheap. Yes, substantial legal costs may
be incurred. However, the amount of legal costs may be small as against the loss that may be suffered by the wife (or husband) if she never becomes aware that the husband has lied and got away with it.
Solicitors do have a purpose. In Family Proceedings we do not accept information and documentation disclosed to us as gospel. We are trained to consider the information and documentation and ascertain whether or not further enquiry or investigation is required.
If Family Mediation predominates, then it is likely that that enquiry/investigation will be removed, as a result of which there may well be a lack of justice.
To discuss how we can provide further advice in connection with these issues, please contact Peter Woolf, Partner and head of our Family department, by email to peterw@berg.co.uk or alternatively you can call Peter on 0161
833 9211.
The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for article's accuracy or correctness is assumed by Berg or any of its partners or employees.
Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.