Guide to Collaborative law

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What is collaborative law?

Collaborative law is an alternative to the traditional adversarial approach and designed to minimise the pain and distress of the divorce process.

Collaborative law was developed by family lawyers to manage the divorce process in a more dignified manner. Collaborative law operates as a series of face-to-face four way meetings, where the agenda is set by the clients and is aimed at enabling the parties to resolve the issues resulting from a breakdown of a relationship. The process requires the parties and their solicitors to sign up to an agreement promising to try to reach an amicable consensus on all issues without recourse to court proceedings. Couples are assisted by their respective solicitors to work out issues such as children or finances without risking the threat of court action during the negotiations. The parties instruct their own solicitors and have separate legal advice. There is no limit to the number of meetings that can take place.

Collaborative law recognises that there are concerns which a client may have when a relationship breaks down that may not be of a legal nature, and allows those concerns to be addressed and looked at through the use of outside experts if necessary, for example, counsellors, accountants, financial advisers, estate agents etc.

If it transpires that, despite everyone's best efforts, an agreement cannot be reached then the parties must instruct other solicitors to represent them in subsequent court proceedings. Accordingly, both the parties and their collaboratively trained solicitors have an interest in making the process work. As a result, the collaborative approach has a very high success rate.

How long does the collaborative process take?

One of the benefits of the collaborative process is that it is not driven by a timetable imposed by the court. So to a large extent the process can be built around your family’s individual needs and priorities.

What are the advantages of using the collaborative route?

  • You control the speed of the process and the timescale.
  • You maintain greater input and control over negotiations.
  • Other experts can be brought in if required.
  • You can discuss matters that may not be considered relevant by the courts.
  • Agreements and solutions are often more flexible and creative than court orders.
  • If successful, it can avoid the need for litigation.

What are the disadvantages of using the collaborative route?

  • If an agreed outcome cannot be reached, and it becomes necessary to proceed down the court route, it would be necessary for both parties to instruct new solicitors.
  • If it fails and it becomes necessary to apply to the court, the costs can be significantly greater.
  • The process could be abused by an individual who deliberately fails to make full and frank voluntary financial disclosure.
  • It is not suitable in cases where there has been a history of domestic violence.
  • It tends to be a little more expensive than mediation because it necessitates the presence of two solicitors at each round-table meeting.

Collaborative law case study

A couple who were both marrying for the second time wanted to preserve the assets they brought into the marriage, and only share in the matrimonial aspect, i.e. the increase in value of those assets during the marriage.

There was a disparity in their respective wealth and one party to the marriage was significantly wealthy.

During the collaborative process, a starting point for the valuation of the assets going forward was agreed and a formula for dividing the assets upon any marriage breakdown was reached. Agreement was also reached on whether that formula would differ depending on the length of the marriage. An agreement was reached, leaving the couple to enjoy their wedding day.

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