February 3, 2023

Pragmatism in separation

In days gone by, when people still carried cheque books, if a client said to me “it’s the principle that counts” I would ask them to open their cheque book, sign their name on the bottom of the first cheque, tear it off and hand it to me blank. Invariably they hesitated, then declined to do so.

Principles are expensive things. It takes a lot of time and energy getting to a final hearing. There will inevitably be preliminary hearings, evidence gathering, research and preparation before any substantive hearing occurs where principles are applied to the facts, and a decision made.

The family courts operate what is known as a “discretionary jurisdiction”. The law gives the courts a wide discretion when it comes to making determinations. Often there is no right or wrong answer but a host of possible solutions, none of them perfect, and the Court tries to alight upon the least worst outcome.

It is said that a successful mediation is one where both parties come away with an agreed outcome that neither is happy with; neither party got it all their own way and both had to be pragmatic and compromise. It is far easier to live with an outcome you have had a say in than to have a result imposed by a third party. Furthermore, the Court’s hands are tied with what it can order; it cannot stray beyond the powers conferred on it under the law. A negotiated solution, however, can build in as many details as the parties require and represents a tailormade solution.

An understanding of relevant legal principles is of course important to inform the decisions that need to be taken. However, taking a pragmatic approach to negotiations can make the process quicker, cheaper, more efficient and allows parties to maintain their dignity.

If you would like to know more – please contact our team on 875875 or fill out the form below.

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