What is collaborative law?
The collaborative family law process is a relatively new approach in dealing with family disputes. Each party instructs their own lawyer but instead of conducting negotiations between you and your partner by letter or phone, you all meet together to conduct discussions face to face. Each of you will have your lawyer by your side throughout the entire process and therefore you benefit from legal advice as you go. The aim of collaborative law is to resolve family disputes without having to go to Court. The presence of your solicitor throughout the process means that you have the security of on-hand legal expertise, should you need it.
At the outset of the process, both parties commit to resolving their issues without going to Court. If the process breaks down then the agreements must be torn up and you have to begin again, as if you hadn't embarked on it, also instructing new solicitors (and also sign an agreement to this effect).
Collaborative lawyers must undergo specialist training in order to participate in the process. If collaborative law is the right approach for you, then it can be hugely effective, dynamic, quick, empowering and flexible. We have a team of trained collaborative lawyers and our innovative approach in working together with a like-minded firm, Stephens Scown, makes collaborative law an attractive option for many of our clients.
How does the collaborative law process work?
Each party chooses a collaboratively trained lawyer to represent them and the lawyers will assess whether the collaborative approach is the right one for them. The collaborative approach allows for the real concerns of clients to be heard and addressed in a way that is not possible in the traditional Court process.
Once it has been decided that the collaborative approach is the right way forward, a four way meeting is arranged between the parties and their respective lawyers. An agenda of issues the parties feel are important can be agreed and drawn up in advance and worked through during the meetings.
What are the benefits of the collaborative law process?
Collaborative law provides a medium between the Court and mediation. The Court process almost always increases animosity and hostility between parties to a divorce/dissolution. The collaborative process is designed to reduce any hostility between parties. The 'No Court Rule' allows you the freedom to be open and transparent in your negotiations without the fear that your ex-partner and their lawyer will try to use what you say in discussions against you in Court proceedings. The process is about encouraging both parties to see one another's point of view and helping them to rediscover common ground. It is designed to give the clients the control to make their own decisions and to reach the best long-term resolution for the family.
How long does the collaborative law process take?
Unfortunately, there is no concrete answer to this question. The process is designed to be flexible enough to fit around the parties' other commitments that allows them to work at their own pace. The number of meetings required will depend on what needs to be resolved and on how productive discussions are. How long it takes to discuss and agree will vary from case to case and depends on the people involved. On average, agreement/resolution is reached in around four to five sessions, lasting approximately one and a half, to two hours each. Following agreement there is a form filling exercise to be completed by the Court, confirming the arrangements and obviously the implementation of any agreement.
What will the collaborative law process cost?
Once more, unfortunately there is no concrete answer to this question. The cost will depend on a number of varying factors, such as the seniority of the lawyer representing you, the area of the country in which you live and, of course, how long the process takes to reach resolution.
What if I do not want my lawyer to disclose everything at the collaborative meetings that I have told them?
Being open and honest are the key two foundation stones for the success of the collaborative approach.
Therefore, in order for the process to work, the parties need to understand and accept from the outset that for their lawyers to work together to the best effect, they must be able to share information freely with one another. Consequently, it is important that your lawyer is able to disclose the open and true position. The ethos behind the collaborative process does not lend itself to using 'tactics' in negotiation.
What happens if the collaborative meetings get emotional?
Given the nature of these meetings, this can sometimes happen. How this is dealt with will depend on the cause of the upset. Sometimes a break is all that is needed to refocus. Sometimes it will be necessary for the meeting to be concluded and for a new date to be arranged to continue. Collaborative lawyers are trained to deal with such events and will endeavour to work closely with the parties to resolve any bumps or obstacles that arise during the process.
What is a Separation Agreement?
If you are unmarried, or married but not ready to divorce, then you may wish to enter into a Separation Agreement. A Separation Agreement will set out what you have agreed and can cover issues such as finances, and arrangements for contact and residence of the children. Separation Agreements freely entered into with both parties having received independent legal advice and full information about each other's finances are usually binding, and therefore enforceable by the Court.
It has long been established that where a couple have separated, or are about to separate, every encouragement should be given to them to reach an agreement with regard to their financial affairs. Making an application to the Court for financial relief should always be seen as a last resort in these situations. Separation Agreements can be used to address/deal with certain specific issues only (for example, maintenance) or they can be comprehensive and provide full division/distribution of the available assets, as would occur on a divorce. It is important to note that the Court still retains discretion whether to uphold any agreement.
Why separate and not get divorced?
The most common use of Separation Agreements tends to be in circumstances where a couple knows that they want to separate and how they want to divide up their assets but, for whatever reason, simply do not want to get divorced. Parties may be reluctant or unable to rely on the reasons for divorce and wish to separate, or may not wish to divorce for religious/personal reasons.
In those circumstances, a Separation Agreement can be used as a precedent for the time when the divorce takes place. The Agreement will usually provide steps to be move on and divorce after two years' separation, taken once divorce proceedings are initiated, a couple of years down the line, and the Separation Agreement can be redrafted as a Consent Order to be approved by the Court during the divorce process.
Separation Agreements are different to Pre-Nuptial Agreements and Post-Nuptial Agreements because the Supreme Court has classed them as maintenance agreements which are legally binding on the parties and therefore enforceable by the Court. The usual remedies are available to the parties for breach of contract, if a Separation Agreement is breached.