Breakdown of Trust
Sending a cutting, aggressive response to a difficult letter or in response to a trying situation can, for some, feel good in the moment. We are all human, and there can be a feeling of satisfaction at having your say. The satisfaction, however, is often short lived. It can very easily descend into tit for tat correspondence and a cycle of bitterness can ensue with legal fees increasing as a result; instructions need to be taken on lengthy correspondence; it needs to be reviewed and then discussed with the client; a draft response needs to be considered…that short term feeling of satisfaction can see an increase in legal costs.. Where the duration of court proceedings is accompanied by lengthy, back and forth correspondence, the costs can start to rise. The prospects of negotiations and compromise can diminish, as the case is driven to a final hearing.
Legal costs cannot be put back into the matrimonial pot, which will inevitably diminish as solicitors’ fees are paid. Cost orders can be sought, but the money has been spent; all a costs order does is move a debt from one side to the other. Higher legal costs can be the difference between achieving your preferred outcome in the proceedings. For example, in some cases, one party may wish to retain the family home. If the other resources in the case (i.e. cash savings and investments) have been exhausted on legal fees, the family home may be the only resource from which to meet both parties’ needs, and a sale order may prove to be inevitable.
In the 2020 case of RM v TM  EWFC 21 Mr Robert Peel QC, sitting as a Deputy High Court Judge, despaired of the parties’ approach to litigation, commenting “This self-defeating litigation is now over. It is scarcely credible that at the end of it all, they emerge with about £5,000 each of liquid assets, having incurred nearly £600,000 of costs, but such is the reality. There may be worse examples of disproportionate and ill-judged litigation, but none spring readily to mind.”
There can be a time and a place for a firmer approach, but it should be used sparingly and when necessary. Before considering putting pen to paper (or fingers to keys), consider where the correspondence will take your case; will it move matters forward and will it make a positive difference to your case? Sometimes, a robust response needs to be sent, but taking the higher ground can have many benefits both in terms of costs and tactics. An unnecessarily aggressive approach rarely finds favour with judges. Taking a measured approach can have cost benefits, benefits to your emotional wellbeing (combative correspondence can take its toll) and have tactical advantages. Calm and measured does not mean weak. Indeed, if you have a difficult relationship with your ex, moving forward with your life positively will give you freedom from negative emotional ties far more quickly than snapping back ever will. Often, the correspondence may not even be seen by the judge.
That being said, we are but human and taking the higher ground, particularly when faced with what can feel like personal attacks can be difficult to maintain long term, even for the most self-assured individual.
When considering the approach you wish your solicitor to take on your behalf, thinking past the conclusion of their involvement is important. Your life will continue after the legal dispute has ended, and where there are children involved, your relationship with your ex can too. Even with difficult cases, it is possible to separate or divorce well. Knowing you conducted matters with respect and dignity can be valuable.
Not only that, holding onto anger, bitterness or resentment, and using them to fuel your legal journey through your divorce can be damaging to YOU. Anger might give you energy, but it can also be a fog that prevents you seeing the picture clearly, and it can mean that your priorities become skewed.
There is an old analogy that holding onto anger is like drinking poison and expecting someone else to die, or that it is like holding hot coals in your hand and expecting not to get burnt. It can eat you up inside, and keep you tied to old feelings and old relationships that no longer serve you. It can prevent you from creating a new life that brings you joy. There is, after all, life after divorce or separation.
Stacey Nevin is a Senior Associate in Kingsley Napley’s family and divorce team. She advises UK and international clients on matters involving all aspects of family law, in particular complex financial issues and private children cases.
Claire Black is a specialist Divorce & Break up Coach, and Master NLP Practitioner. She works with individuals, both men and women, through break up/divorce and beyond, enabling them to redefine themselves, create a new radiant life, and ultimately look back with pride.
If you have any questions about the topic of this blog, please contact a member of our team of family and divorce lawyers or click here to get started online and find out where you stand.
This blog was co written by divorce coach, Claire Black.
As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.
We are delighted to have been shortlisted for both the Firm of the Year and Wellbeing Awards at the Lexis Nexis Family Law Awards 2021.
We are pleased to announce that Kingsley Napley's Family team has been shortlisted as 'Family Team of the year' in the Chambers HNW Awards 2021.
We are pleased to announce that 8 solicitors in our Family and Divorce team, including all 7 partners, have been featured in the Spear's 2021 Family Law Index.
The breakdown of a relationship is a challenging and stressful time, even when you and your partner are on relatively good terms.
There are a number of support services we recommend to help manage the strain which comes with relationship breakdown and the significant changes to your and your children’s circumstances. People often go first to friends and family and then perhaps to a lawyer, counsellor or financial advisor. Many people do not feel comfortable talking to their employer about their circumstances and in this blog, we explore how it can be important from both a personal as well as family law and employment law perspectives.
Will MacFarlane, partner in our Family and Divorce team, has been quoted in an article in The Times about how family lawyers have adapted their working practices during the pandemic.
Jane Keir, partner and Charlotte Bradley, partner and head of department in our Family and Divorce team, address questions about gambling addictions and how it can impact on family finances during a divorce.
The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.
Stacey Nevin, senior associate in our Family team, has been quoted in Today's Family Lawyer about the impact that COVID-19 has has on the ability to get divorced and the different options that couples are trying.
Olivia Stiles, associate in our Family team, has been quoted in Today's Family Lawyer about the possible rise in demand for family legal services as we enter the new year.
It has been 20 years since the landmark White v White  UKHL 54 decision. Abby Buckland has written for New Law Journal questioning how much progress has been made in gender equality.
Last night, Kingsley Napley’s Family & Divorce team hosted a webinar debate titled “This House believes remote hearings are not remotely fair”, chaired by The Honourable Mrs Justice Roberts. Over a hundred family lawyers and barristers participated via Zoom and, following arguments from Lucy Stone QC, James Roberts QC, Brent Molyneux QC and Nicholas Yates QC, the motion was carried following an online audience poll with 56% in favour and 44% against.
Charlotte Bradley, head of the family team at Kingsley Napley, is the contributing editor of the recently published 4th edition of International Comparative Legal Guide to: Family Law 2021.
Jane Keir shares her views on remote justice with Spear's Magazine in a letter to the editor.
We recognise that the last few months have been testing for many separated parents who have been co-parenting throughout the pandemic – with home schooling and juggling work and child care commitments between two households. With the uncertainty as to whether schools can safely reopen fully, some separated parents may well find themselves disagreeing on whether their child should attend in such circumstances.
Much has been written about the case of Barder v Calouori  AC 20 (“Barder”) in the initial stages of the COVID-19 lockdown. It was held out as the means by which maybe, just maybe, it might be possible to reopen a case where a substantive financial order has been made on the basis that the COVID-19 pandemic is an event which has invalidated the basis, or fundamental assumptions of the original financial order.
The family courts remain open in the midst of this pandemic and as a divorce lawyer, I therefore continue to grapple with the question of how the asset pot should be divided fairly and in accordance with the law when there is so much uncertainty in the global market. Whilst the government recently announced the “re-opening” of the property market, economists and housing experts have differing views on how significant the fall in house prices will be and when the market can be expected to bounce back.
The uncertain financial trajectory as a result of the coronavirus crisis is something that couples going through the divorce process need to consider carefully as it can have an impact on their financial settlements. Pension assets can often get overlooked on divorce generally as they are not viewed in the same way as a cash asset or a property.
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