Legal update: The Collaborative Divorce: A new approach

Is the collaborative approach right for you?

1. Do you trust yourself and your partner to prioritise the needs of your family?
2. Do you trust yourself and your partner to be open about your financial situation?
3. Are you able to communicate with your partner openly and fairly?
4. Do you want to find a solution to assist you to effectively co-parent your children in the future?
5. Do you wish your divorce to proceed with minimal impact in the family?

If your answer to the questions above is mainly yes, collaborative divorce may be a suitable option for you.

What is a collaborative divorce?

Traditionally the process of divorce is adversarial; it requires prolonged court intervention, decisions reached by Judges are often unsatisfactory – to one or both parties – and legal costs are high. The emotional impact can be traumatic.

Collaborative divorce is a specialised, holistic, family focused approach to divorce where the team works together to ensure the parties arrive at reasoned solutions to their family situation which recognise that the interests of all members of the family are aligned.  It is a commitment between yourself, your partner and your children to resolve your divorce or separation with minimal involvement of the court.  This process allows you to make your own decisions in conjunction with your spouse or partner as to how your divorce is conducted and the outcome that you wish to achieve.

In a collaborative divorce the team includes specially trained collaborative legal professionals for each spouse and can also include independent financial and mental health support professionals and children’s support professionals to assist in the process.

A collaborative divorce ensures that there is a free-flow of information between the parties.  The parties sign a participation agreement in which the couple and their collaborative solicitors confirm the way in which the discussions will proceed. The parties prepare an anchor or aspiration statement.  This is essentially your own words to articulate your shared goals in a clear and concise manner which is the foundation for the collaborative approach. The parties agree to conduct all meetings fairly and respectfully. The teams then come together in a series of meetings to facilitate a resolution to all issues which includes the division of financial resources and children’s arrangements.

In collaborative practices the court is largely removed from the process allowing the family to come to their own solution and unlike ordinary divorce litigation or mediation, parties agree should the collaborative process fail, their collaborative solicitors and family support professionals will be excluded from any future litigation which may occur.  This can provide significant impetus to the parties to ensure the process need not be abandoned if discussions stall.

How does the collaborative divorce proceed?

First of all, you and your solicitor meet to discuss the issues arising out of your family situation, the goals and aspirations for your divorce. You will receive guidance on the collaborative principles and advice on relevant family law. Your spouse will in turn have their first meeting with their collaborative solicitors.

There will then be a series of meetings between the collaborative teams to facilitate the conclusion of all issues. If the proceedings are progressing well the parties can apply through the court for the divorce on agreed terms and an order by consent to record all financial agreements and children’s matters will follow once all agreements have been reached.

How long will it take?

As with many legal proceedings this is not a question which can be answered precisely however in collaborative divorce experience it is likely that the process will take significantly less time than ordinary matrimonial proceedings. It could be a matter of two or three weeks or two to three months.

How much would it cost?

Again, this is not something which can be answered specifically however given that proceedings do not require court mandated documentation, the usual depth of financial disclosure or discovery, ongoing court hearings, and the length of proceedings are significantly shorter, this reduces costs for the family as whole.  As part of the financial agreement, legal costs will be addressed fairly by the family finances.

Can Collaborative Practice assist me in other family situations?

Of course.  If you would prefer a gentler, quicker and cheaper approach to your prenuptial or postnuptial agreement or children’s arrangements this can be conducted collaboratively.  Almost any matrimonial, partnership or family situations can be assisted in a collaborative process.

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

To learn more about Collaborative Practice please contact:

 

Joanne Brown
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.