Divorce Law to be Replaced – How the Collaborative Divorce Process is Taking Over

Nigel C Winter - Partner in the Family Department of Rawlison Butler solicitors

Nigel C Winter – Partner in the Family Department of Rawlison Butler Solicitors

There is one thing we can be sure of – if something is happening in California, it will be happening everywhere else within 20 years’ time. And in America we have seen a dramatic increase in the use of Collaborative Law which is now increasing in the UK.

Are the days of the old fashioned acrimonious divorce numbered?

When parties are going through a sensitive transition like a divorce they will often want to go to lawyers who are trained in avoiding conflict and getting them both where they want to be.

And whilst the newspapers are full of celebrities in high profile divorces, there are many more who are to great lengths to stay out of the papers – trust me; Anonymity is the new celebrity!

The Collaborative Divorce Process

In many ways the Collaborative approach to family separation is tailor-made to the requirements of the modern world. It seeks to preserve family life albeit one in which the parents are no longer married.

Co-operating after separation is essential to serving the best interests of the children. Furthermore the model seeks to minimise conflict and offers total privacy. That degree of privacy is not available in the conventional Court-based divorce as many sensitive celebrities have found out to their cost.

Small wonder increasing numbers are opting for the Collaborative approach and, like it or not such people to seem to ‘set the trend’.

How Does it Work in Practice?

Both parties take advice from collaboratively trained lawyers. There would then be a four way meeting between both lawyers and both parties.

The first difference that anybody looking in would notice, is that everyone is on first name terms.

It’s a small thing but it is a vast difference to cross examining someone under oath. The dynamic is completely different and everybody has the confidence to talk freely safe in the knowledge that they are not prejudicing their position.

The lawyers have a vested interest in ensuring that this process doesn’t breakdown as there is an agreement if it does that they would have to stop acting and the parties would seek legal advice elsewhere to take the matter on to Court.

the collaborative divorce process

The Collaborative Divorce Process – a four way meeting between both lawyers and both parties.

Contrary to popular belief, lawyers do not have a vested interest in taking cases to Court, but as that is a perception it is promptly rectified by this very rigid rule.

Are there any disadvantages? Frankly it is hard to see any.

If there is an overbearing spouse or partner then it is well within the realms of possibility that they will seek to use the Collaborative process as a means of getting what they want.

However, each individual case should be ‘screened’ at the outset to make sure that there is the requisite degree of trust, honesty and devotion to fairness.

This will not cover all cases and there is perhaps an inevitable tension between a lawyer’s desire to serve the parties within the Collaborative process and their unyielding professional duty to ensure that their client receives the best advice concerning an appropriate settlement. Where the two conflict, the latter must prevail.

A further boost is given to the Collaborative process by virtue of the fact that the Courts now emphasise the importance of alternative dispute resolution ie avoiding Court.

Indeed it is a pre-requisite in the vast majority of cases that the parties attend Mediation before they can actually issue proceedings.

The shortcoming with Mediation is that the lawyers are not present and therefore their advice still has to be sought afterwards in any event.

However they are present throughout during any Collaborative meeting and ‘on tap’ to advise both parties. One might therefore speculate that had the Collaborative process been more widely available when Parliament enacted this law, that they would have included Collaborative law as an alternative to Mediation.

The Collaborative approach is not limited to divorce either. Both Cohabitation and Pre-Nuptial Agreements can be discussed and drawn up adopting the same process.

With the divorce rate falling and cohabitation an alternative family model, the continued increase in Collaborative Law as a preferred option is set to increase.

Will it replace divorce law? Perhaps not completely but there is every reason to believe that it will in due course be the first choice for dispute resolution over and above the Court.

And about time too.

Nigel C Winter is a partner in the Family Department of Rawlison Butler Solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

 

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