Come together

Family breakdown, separation and divorce are sensitive issues, and whether your client is a public figure, business person or simply a private individual, most people would hope to deal with their personal affairs in a confidential manner. So, how do you resolve who receives the property, what should happen to the business, where the children should live and how your personal possessions should be divided in the event of family breakdown?

Nitty gritty

Asking a court to thrash out the nitty gritty can be costly, time consuming and risky. Furthermore, following recent changes, this may no longer be a private matter. Court hearings may no longer be heard in private. The press can attend and, in certain circumstances, can report on events. This can be devastating to the individuals and family concerned. So how can this be avoided?

Collaborative law offers an alternative to the traditional routes for resolution of family issues. It allows couples, with the support of their lawyers, to take responsibility for the process, to negotiate with the aim of reaching a solution that is best for them, and to be in control of the outcome. Furthermore, this is a process that guarantees confidentiality. The fact that a settlement is agreed between the couple often minimises the emotional cost of divorce.

Working things out directly with a former partner can enable people to move on more easily, and can be of great benefit where there are children in a family. While many of the links between a couple are severed when a relationship breaks down, they still remain parents of their children, and still need to find a way to work together. A collaborative settlement is a good foundation for this.

A collaborative approach can also be used at the start of a relationship, and, for those wishing to negotiate a prenuptial or premarital agreement, it provides the ideal opportunity for open discussion and negotiation.

It can also be ideal when resolving financial assets as a result of family breakdown, particularly when there is a business concerned. Negotiating within an environment of guaranteed confidentiality can ensure all issues are examined in a sensitive, but pragmatic, way.

However, there are a number of circumstances where a collaborative approach is not suitable (see box).

Setting out

So, how does the process work?

Once both parties have met with their lawyers, and agreed that the collaborative process is the right way to proceed, then both parties will meet individually with their lawyers to talk about what can be expected in the meetings and to plan ahead for each. These sessions are often referred to as ‘four-way’ meetings as they involve both parties and their respective lawyers. Both lawyers will be in direct communication with each other throughout the process.

At the first meeting:

• Each lawyer will ensure their client understands they are making a commitment to work out an agreement without going to court and will sign an agreement to this effect.

• Both parties will have the opportunity to share their thoughts on what they hope to achieve out of the process and everyone will plan the agenda for the next meeting.

• The subject of financial disclosure may be discussed at this point.

The ongoing process is as follows:

• Further meetings will deal with all issues as and when both parties see fit. It is at this stage when other qualified professionals might be involved, for example, to help manage the impact the agreement will have on any children. Also, collaboratively trained accountants and IFAs may be called upon to advise on how to manage the division of assets including pensions, properties, investments and cash.
The advice provided at this stage can have a dramatic effect on the value of any pensions and other assets for both parties. This is one of the great advantages of the collaborative process, as collaboratively trained IFAs are able to demonstrate the tax implications for various methods of dividing assets, which is extremely difficult to manage when the courts are involved in a family dispute. What can often appear as a modest movement in how a pension, savings or the proceeds of a house sale are divided, can lead to huge financial gain for both parties.

Nearing the end

The collaborative process is also unique in how it is brought to a close.

• Unlike the court process, the collaborative law timetable is driven entirely by both parties and their lawyers. As the process draws to a close, documents detailing the agreement will be signed by both parties and advice will be given as to how each individual can successfully implement their part of the deal.

All lawyers who are collaboratively trained are specialist family lawyers, usually with a wealth of experience. This approach encourages lawyers and their clients to focus on solutions, rather than confrontation, and can certainly ensure private matters do not spill out into the public arena.

However, the collaborative approach is open to wider professionals, with collaboratively trained accountants and IFAs joining lawyers in local collaborative law practice groups, otherwise known as PODs.
A word of warning though, practitioners must fully embrace the collaborative approach to managing family disputes. Paying lip service and reverting back to a classic adversarial approach to settling disputes, at any time during the process, will undermine the principles of collaborative law and ultimately lead to a failed outcome.

• There is any history of domestic violence.
• There is a lack of trust with either party; for example, it is felt unlikely that assets will be fully disclosed by the other party.
• There is an imbalance in the dynamics of the relationships; for example, if one party was the dominant figure in the relationship before the separation and the other simply ‘did what they were told’.

Jane Cowley is a partner at Howes Percival and a member of the Leicestershire Collaborative Family Law Group