A Collaborative Approach to Resolving Financial and Children IssuesPublished on: 28 June 2021
We have recently reported that the Divorce, Dissolution and Separation Act is hopefully coming into force, heralding the availability of no-fault divorces, in around April 2022. So in this era where blame is being cast aside in favour of enabling couples to recognise when the marriage has irretrievably broken down and to get a divorce purely on that basis, might it also be a good time to focus on a collaborative approach to sorting out the financial and children issues that arise?
At its heart the collaborative process, which has in fact been available to all separating couples (save where domestic abuse or other exceptions apply) for over a decade now, enables separating couples to discuss options and work towards constructive solutions around a table, each with a specialist, collaboratively-trained solicitor to support and advise them. There are no adversarial court proceedings. The couple choose the collaborative process and agree that they will negotiate in good faith and in a transparent and open way. Each has his or her own collaborative lawyer by their side to provide advice and support. The issues are resolved in face-to-face meetings called four-way meetings and correspondence will generally be kept to a minimum. The parties and their lawyers sign a participation agreement. This confirms that they will work in a respectful way with dignity, and agree to provide financial information openly to enable legal advice to be given, negotiations to proceed in the four-way meetings and, at the end of the process, for the court documentation to be drawn up and submitted to secure a binding court order. This is just as enforceable as an order that has been obtained through the formal court process but usually at about a third of the cost and importantly, enabling the parties to maintain a good co-parenting relationship, retaining goodwill towards their former partner and knowing that they had been an integral part of a client driven process.
The collaborative approach still enables the parties to have expert advice and guidance from independent financial advisers, pension actuaries, family therapists and, if necessary, neutral evaluations from collaboratively trained barristers or determination of any tricky legal points through arbitration. Professionals can join the four-way meetings and speak directly to the couple answering their questions there and then so keeping meetings fluid and speeding the process along. Often collaborative cases are resolved in around a quarter of the time that formal financial remedy or children act proceedings can take.
How to Retain a Collaborative Lawyer.
All collaborative lawyers are members of Resolution, the body of family lawyers committed to resolving matters in a non-inflammatory, constructive and cost-effective fashion. Collaborative lawyers can be found on the Resolution website. Shropshire has an active collaborative group with seven lawyers, plus a collaboratively trained independent financial adviser and a specialist relationship therapist. A list of members can be found here.
At Lanyon Bowdler Lisa Grimmett is the collaboratively trained lawyer and is happy to speak to any interested potential clients for an initial telephone chat.
Once the collaborative lawyer is engaged, he or she will then make contact with the spouse of the client and invite them to consider a collaborative resolution. Ideally that party will then consult a collaboratively trained lawyer as the collaborative process is only open to parties who both recruit collaboratively trained solicitors. The lawyers will then agree with the parties an agenda for the first meeting and look at drafting up anchor statements setting out the aims of the parties and drawing out the areas of common interest; most usually the approach towards the care of the children and the recognition that both parties are striving to secure a fair outcome for each other.
The first four-way meeting enables introductions to be made and the participation agreement to be discussed along with the general aims of the collaborative process and how it differs from the court approach. Collaborative law is more client-focused, client-driven and tailor-made to the clients’ specific requirements. Importantly all discussions are “without prejudice” which means that they cannot be referred to should the process break down. This gives the couple confidence to share ideas and proposals that may have been thought of as possible options for resolving things, without having to be concerned that that information might be used against them in any way. All financial disclosure provided through the process is on an open basis which means that it can be relied upon as true and accurate and used in support of a consent application once an agreement has been reached.
If you would like any more information about a collaborative approach to matters, whether you are in the process of divorce currently or choosing to wait until the no-fault divorce option becomes available next spring, please do not hesitate to contact us.