The breakdown of any form of relationship can be a stressful experience for all involved. There is likely to be a huge range of powerful emotions, such as fear or uncertainty for the future, anger, sadness and often a sense of failure. However, often warring couples on a path to divorce, either do not appreciate or ignore the impact their emotions have upon children caught up in the middle of their conflict.
The ideal is to try to move forward in a way which minimises conflict and gives the best chance for relationships between children and parents to be maintained in the future. In short, the process of divorce should be carried out in the least acrimonious way possible.
One option which may achieve this outcome, is the collaborative model which allows couples to discuss, amongst other matters, issues which are child-centred in a respectful and supported environment. All of this is likely to be particularly attractive to couples who have children.
The process involves both parties and their respective solicitors, who must be collaboratively trained, signing up at the start of the process to an agreement setting out various principles about how they wish to resolve matters, without going to court. Importantly, it is agreed that if the process breaks down, both parties require to instruct new solicitors and so there is a strong incentive for everyone to strive towards agreement and resolution, even if this seems difficult to achieve at the outset. And the abiding threat of "do as I say, or I'll see you in court" is removed from the dialogue.
All negotiations in the collaborative process take place via four-way meetings, with both parties having their solicitors present to advise and guide them in the discussions and negotiations, which allows a couple to have a greater sense of control in the process. The parties also have the option of involving a team of professionals, such as a financial advisor regarding the financial implications of any agreement, or a family consultant who can support them and their children through the emotional terrain. Parties' agents will draw up the final paperwork documenting what has been agreed which is likely to more straightforward given that they have been part of the process and will understand how the agreement was reached.
The goal is to resolve all matters in a dignified and respectful way for the benefit of the whole family. The process is often concluded more quickly than conventional discussions or by going to court. Couples are also more likely to adhere to resolutions they have helped to fashion themselves, rather than having ones imposed on them by the court.
Everyone in the process is able and encouraged to talk openly and propose solutions. If the process fails, neither party can refer to the discussions in later court proceedings, allowing for more freedom and openness during meetings. However, collaborative law does not work for everyone, and cases where there is a history of domestic abuse, or where there is poor communication, may not be suitable.
If there is also an insurmountable lack of trust between the parties, this may also be an obstacle to progress, as there is a still a requirement of full and frank financial disclosure. Under the terms of the collaborative agreement, a solicitor must withdraw from acting on behalf of their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is also open to one party's solicitor to advise him/her to withdraw from the process if the other party is not keeping to the terms of the agreement.
As well as reducing legal costs, in many cases, the collaborative process can also reduce the heartache and conflict which sometimes go hand and hand with marriage breakdown. In many cases it is not the divorce itself that does so much harm to families, but the way in which people choose to divorce.
At Brodies we have a team of lawyers who are collaboratively trained. For more information please contact Fiona Sharp, Senior Associate, Family Team, 110 Queen Street, Glasgow G1 3BX, Telephone 0141 428 3377, Fiona.sharp@brodies.com. Please also note that we are able to carry out collaborative cases by way of Zoom or Microsoft Teams.
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