Divorce is rarely easy, but how it is settled can make a significant difference to the process and the outcome. In the UK, separating couples face a choice between resolving matters out of court, through negotiation, mediation, or solicitor-led discussions, or asking a judge to make the decisions for them.

While costs are often the most talked-about difference, there are many other important considerations. Timescales, the impact of one party’s behaviour, the degree of control each spouse retains, the role of third parties, and the finality of outcomes all play a role in determining which path is more appropriate. This article explores when it may or may not be advisable to go to court, and the practical pros and cons of each option.

Out of court settlement: The starting point

For most couples, resolving matters outside the courtroom is the preferred starting point, and family law actively encourages out-of-court resolution wherever possible. Solicitors, mediators, and even the courts themselves will usually promote negotiation and mediation before going down the litigation route.

Advantages of settling out of court

  • Control and flexibility: One of the strongest advantages of staying out of court is the control couples retain over the outcome. Rather than having a judge impose a ruling, the spouses negotiate a settlement tailored to their specific circumstances. For example, a couple may agree that one parent keeps the family home until children finish their education, even if a strict 50/50 split of assets might have been ordered in court.
  • Privacy: Court hearings, while not always fully public, are still more formal and recorded than private negotiations. Out-of-court settlements preserve confidentiality, allowing couples to keep sensitive financial or personal details away from wider scrutiny.
  • Timescales: Negotiated settlements can be reached relatively quickly, depending on the parties’ willingness. Mediation sessions may take a matter of weeks, while solicitor-led negotiations might span several months. In contrast, court proceedings often stretch into a year or more because of backlogs and procedural stages.
  • Reduced stress and adversarial tone: Court proceedings can heighten conflict, especially where children are involved. Out-of-court methods encourage constructive dialogue and problem-solving. Mediation, in particular, focuses on communication and understanding, which can preserve a more amicable co-parenting relationship.
  • Cost savings: While the brief suggests cost is already well known, it is worth noting that avoiding lengthy litigation usually results in lower overall fees.

Disadvantages of settling out of court

  • Requires cooperation: Out-of-court settlement only works when both parties are willing to engage in good faith. If one spouse refuses to disclose full financial details, drags out negotiations, or behaves abusively, settlement becomes impractical or unsafe.
  • Potential for imbalance: Where one party is more dominant or persuasive, the weaker spouse may feel pressured into an unfair agreement. Although solicitors and mediators can mitigate this, the absence of a neutral judge can sometimes mean inequality is not properly addressed.
  • Less finality without court approval: Even if spouses reach agreement, certain arrangements (particularly financial settlements) must be turned into a legally binding consent orderapproved by the court. Without this, there is a risk of future claims. For example, a spouse could later apply for financial provision if the agreement was not formalised properly.

Going to court: When and why it may be necessary

While staying out of court is preferable in principle, there are many scenarios where going before a judge is advisable—or unavoidable, with court involvement sometimes seen as the only way to achieve certainty and fairness.

Situations where court may be necessary

If one spouse conceals assets, refuses to provide financial documents, or undervalues property, negotiation becomes futile. Courts have powers to compel disclosure and to penalise non-compliance. Without this authority, it may be impossible to achieve a fair settlement.

Where there is domestic abuse, emotional, financial, or physical, out-of-court processes like mediation may be inappropriate or unsafe. The court provides a structured environment with protective measures and judicial oversight.

Parents may have fundamentally different views on where their children should live, schooling, or international relocation. While mediation can sometimes bridge differences, there are cases where only a neutral judge can impose a decision based on what is in the child’s best interests rather than what the parents want.

If one party consistently refuses to engage, misses mediation sessions, or ignores solicitor correspondence, court proceedings may be the only way forward. In addition, high-value cases involving businesses, pensions, or overseas assets, expert evidence may require judicial guidance in order to reach a fair division.

Advantages of court proceedings

  • Neutral and authoritative decision-making: A judge offers impartiality. Each party presents their case, but ultimately the decision is made by a professional bound by law and fairness, not by personal preference or negotiation tactics.
  • Finality and enforceability: Court orders are legally binding and enforceable. Unlike informal agreements, they cannot be easily reopened (except in cases of fraud or significant new evidence). This brings closure, which is particularly important in financial matters.
  • Fairness and protection: Judges are guided by principles in legislation such as the Matrimonial Causes Act 1973, which prioritises fairness and needs—especially those of children. This can protect weaker parties who might otherwise accept an unfair agreement out of fear or financial pressure.
  • Structured process: Court proceedings follow clear timetables and stages (financial disclosure, hearings, evidence). For some couples, this structure prevents indefinite stalling.

Disadvantages of court proceedings

  • Loss of control: Once a matter is in court, the outcome is out of the parties’ hands. A judge’s decision may leave both sides dissatisfied. For example, neither parent may get the precise child arrangements they hoped for.
  • Emotional strain: The adversarial nature of litigation can escalate hostility, making future co-parenting harder.
  • Delays: Family courts are under heavy pressure, with many cases taking a year or more to conclude. This can prolong uncertainty for both finances and children.
  • Public record: While family cases are not always fully open to the public, they are less private than mediation or solicitor negotiation. Sensitive details may be discussed in a formal forum.

Solicitors’ role in steering the path

The behaviour of solicitors can also shape whether cases go to court. Some solicitors emphasise negotiation, aiming for settlement, while others take a more aggressive stance that drives litigation. It is important for clients to choose legal representation aligned with their goals—whether cooperative resolution or assertive court action.

Whether to settle in or out of court depends heavily on the circumstances:

  • Best for out of court: Couples who can communicate reasonably, are willing to disclose finances, and want to retain control and flexibility.
  • Best for court: Cases with dishonesty, abuse, entrenched disputes, complex finances, or uncooperative parties.

The crucial point is that going to court is not a failure. For some, it is the only path to fairness, protection, and finality.