Breaking the myths of divorce with ‘conscious uncoupling’
Divorce comes with a huge range of emotions. As soon as someone is even considering divorce as a possible option, the road ahead can appear uncertain, coupled with the fear of the unknown. The media does not always help with this, with stories of hotly contested separations and battles over money and children. No-one enters marriage intending to get divorced but sometimes the relationship just doesn’t work out, partners grow apart, or life changes unexpectedly.
Despite the myth, divorce does not need to be acrimonious, with each party adopting a positional approach and communication becoming argumentative. Collaborative divorce offers couples the option of working together to agree sensible and practical solutions to achieve a more amicable separation.
What is collaborative divorce and how does it differ from the normal process?
Collaborative law is a voluntary, confidential dispute resolution process used as an alternative to court proceedings, family law arbitration, family mediation or negotiation between solicitors. It removes the formality of the normal Divorce as we know it, reducing costs and in most cases, removes the unnecessary tension and agitation that the usual formal route of Divorce can sometimes provoke.
Is there a set process or timetable for collaborative divorce?
The process of a Collaborative Divorce requires parties to instruct and liaise with collaboratively trained lawyers in order to sign a Participation Agreement. A Participation Agreement commits all parties to resolving the dispute without the need for the Court to get involved. Once an agreement has been finalised between the parties, the Court will then approve and formalise the agreement in order to finalise and legalise the Divorce.
During the process of negotiating the terms of the Participation Agreement, there will be a series of negotiations between the parties and their collaboratively trained solicitors. These negotiations are without prejudice, which means that, should any subsequent Court proceedings arise for any reason, these without prejudice negotiations cannot be brought to the Courts attention and will remain confidential to the parties and their lawyers.
The negotiation meetings are four-way. The parties retain control over the process (from venue to the frequency and scheduling of the four-way meetings) and whether or not to settle the dispute and on what terms. The collaborative lawyers are there to advise on the legal points and processes, rather than to take control and steer the meetings.
It is a private forum where the parties can explore settlement options, narrow or resolve issues in dispute. The private, confidential and privileged nature of these meetings can encourage parties to put their cards on the table and be honest.
The full process for a collaborative divorce is as follows:
Before the first four-way meeting, the collaborative lawyers will screen their clients for suitability. If there are no concerns about suitability to enter into the Collaborative Law process, a collaborative lawyer will ask the party to discuss their goals and objectives in engaging in the Collaborative Law process. Each party needs to prepare an anchor statement (also known as an aspirations statement) setting out:
- Why they want to resolve matters using the CL process.
- How they would like the CL process to work for them and their family.
- What solution they want the outcome to offer.
- Where appropriate, how the co-parenting relationship between the parties will work in the future.
The intention is that when matters stray or become unhelpfully focused on a single (often irrelevant) issue, the parties are brought back to these statements to remind them of their priorities in entering the CL process. These statements often refer to children or maintaining an ability to co-parent without animosity. The statements are drafted by the parties, sometimes with the help of their lawyer or therapist.
The parties need to consider the pace at which the process is to proceed and whether there are any urgent issues that need to be discussed immediately in the first four-way meeting. Depending on the nature of the dispute, the parties may be asked to collate certain documents or disclosure before the first four-way meeting.
Collaborative lawyers
The collaborative lawyers may discuss or meet together alone for housekeeping purposes. They will:
- Agree a venue and time for the first four-way meeting;
- Identify and discuss their client’s respective priorities, concerns and aspirations and how they can be addressed;
- Identify the issues to be resolved in the CL process;
- Explore how to narrow the issues in dispute;
- Agree an agenda for the first four-way meeting;
- Discuss and identify the necessary documents or disclosure to be provided and consider whether that is to be supplied at the first four-way meeting;
- Consider whether third-party assistance is needed, for example, from a family therapist or an independent financial adviser (also known as a financial neutral); and
- Agree what needs to be done and by whom before the first meeting, such as who will draft the participation agreement.
It is essential that the lawyers develop a rapport if they are to work collaboratively with a similar approach to achieving the clients’ goals.
The first four-way meeting
The initial meeting can last for two to three hours. During this time, the lawyers work together to ensure that the parties are clear about what they can expect from the CL process and each meeting.
The lawyers explain:
- How negotiation will be handled.
- That there will be transparency in the exchange of information.
- That legal advice will be delivered individually to each party and within the four-way meetings.
The meeting is also used to discuss the parties’ aims and aspirations at the outset of entering into the process. The parties will be invited to share their anchor statements and to confirm their priorities and identify any anxieties they have about the CL process.
Participation agreement
The parties and their collaborative lawyers commit to the CL process by signing a participation agreement. This sets out the parameters and intentions of the process. Both parties agree to waive legal professional privilege for the purpose of the CL process. Legal advice is given by the lawyers to the parties in front of the other party and their lawyer in the four-way meetings. For this reason both parties and their lawyers agree from the outset, that if the CL process breaks down, the parties must instruct new solicitors to represent them in any dispute resolution process. This key commitment is recorded in the participation agreement (and is commonly referred to as a disqualification clause).
The disqualification clause states that if the collaborative process breaks down, the parties will engage new lawyers to represent them in any subsequent negotiations or dispute resolution, particularly in contested court proceedings. The agreement can also deal with issues such as how the costs of the CL process are to be met.
Third-party input and assistance
If the assistance of a neutral third party is required, such as an independent financial adviser, this will be discussed, and one chosen by agreement. Where appropriate a family therapist (also known as a family consultant) can be brought into the CL process, to attend the first meeting or later meetings. A family consultant may have expertise in dealing with issues of family dynamics which can be particularly helpful when addressing issues relating to children, especially when the parties have adopted polarised positions. A family consultant can help one party to see things more clearly from the other’s or their children’s perspective. Wherever possible, information from any third party relating to the dispute is sought on joint instruction.
What will be agreed
A timetable for the next four-way meeting or series of meetings and future process will be agreed. Before the meeting ends, the practicalities of the next meeting will be agreed, including task allocation in the meantime such as identifying and agreeing documents that both parties need to bring to the next meeting and who should prepare and circulate the minutes of the first meeting. The agenda for the next four-way meeting will be agreed.
After the first and subsequent four-way meeting
After each four-way meeting, the parties will meet with their respective lawyers to debrief and discuss what occurred in the meeting. Any legal advice that is given will be reported to the other party and their lawyer at the next four-way meeting. The lawyers will also debrief face to face, preferably immediately after or within 24 hours after each meeting.
There should be little or no correspondence between the parties and their collaborative lawyers outside of the four-way meetings except to:
- Circulate the minutes of the meetings.
- Exchange information which it is agreed will be provided in this way.
At subsequent meetings, the minutes of the last meeting will be approved and signed by all parties in the CL process. In a financial case full disclosure will be exchanged (and, where necessary, questions raised and answered in an agreed way) enabling the parties to identify their preferred financial outcomes and negotiations to take place. If the dispute relates to children, whatever enquiries or third-party advice that needs to be taken, can be brought back to the next four-way meeting for discussion.
Impasses may often arise during the CL process. The process requires the lawyers acting collaboratively to take steps to tackle any conflicts as they arise. Impasses may be broken using any number of strategies, including:
- Brain storming.
- Introducing another professional to deal with discrete issues (such as a mediator, family consultant or trained collaborative law barrister).
- Taking a break.
- Developing new options for the parties to consider.
- Reality testing a proposition or suggestion that is preventing negotiations from progressing.
After a series of meetings (up to six or more), if resolution is reached, the agreement will be incorporated into a draft minute of consent order for approval and endorsement by the court.
If it becomes clear that no resolution will be reached and that impasses have arisen that cannot be broken, the parties will agree to terminate the process under the participation agreement.
After the collaborative law process
Consensus achieved
If a successful settlement is reached in the CL process, the lawyers will draft any necessary documents for submission to and approval by the court. The lawyers will issue proceedings to bring the legal relationship between the parties to an end as required and to obtain a consent order setting out the agreement reached.
It must be clear on the draft minute of consent order that the settlement has been reached through the CL process.
Family courts will fast-track the review of any minute of consent order agreed using the CL process. Any settlement agreed within the CL process needs to be converted into a court order to bind the parties. Consent orders are usually lodged at court for review and approval by a judge. It can be time-consuming for the order to be approved, sealed and returned to the parties.
However, where every aspect of the documents is agreed in the CL process, the minute of consent order can be submitted for a judge’s consideration via the urgent without notice applications list.
An order made at the end of a CL process can be challenged (for mistake, fraud or material non-disclosure) or varied in the same way as any other order.
No consensus
If the CL process does not result in settlement, the collaborative lawyers cannot continue to act. Each party must terminate the retainer with their collaborative lawyer. Depending on the remaining issues in dispute, the parties can either instruct new lawyers or act in person. The lawyers will each write to their clients explaining the consequences of breakdown of the process and the without prejudice status of the process, including the discussions, disclosure and minutes of the meetings.
The documents produced within the CL process remain subject to without prejudice privilege, unless privilege is expressly waived. This can be done by including a clause to this effect in the participation agreement or separately. Waiving without prejudice privilege in relation to the disclosure used in the CL process avoids duplication of costs in repeating the disclosure exercise if the CL process breaks down.
The collaborative lawyers will inform any third party instructed in the CL process that the process has broken down. This is usually done jointly in writing.
Other participants
During the CL process, the parties can obtain advice from professionals from other fields, such as independent financial advisers, valuers and surveyors, accountants or family consultants.
As a trained collaborative lawyer, what sets you apart from other divorce lawyers?
These attributes are likely as you would expect, but all together will help us to ensure you get the best collaborative representation and outcome for your situation.
Good listening skills – listening to the objectives of the couple is essential to make sure that the best advice is given to achieve the right outcome. Too often couples can feel swept up in the process of divorce and lose sight of what they set out to achieve. We also find that parties that feel listened to are much more co-operative. It is pivotal for us to know how you feel and this can change the recommendations we may make.
Good negotiating skills – there are lots of different negotiating styles, but collaborative lawyers bring calm, reasoned and solution focused discussions to the table. The approach is much more about working together than scoring points.
Experience – we have a wealth of experience in both the traditional divorce route and the collaborative approach, allowing us to dip in and out of experience from both methods to get you the best result. Our team have been working with couples and families for over 30 years and can therefore we are aware of the best approaches to take and the pitfalls you may encounter.
Expertise – There is specialist collaborative law training which all qualified collaborative lawyers must have completed. This gives you the reassurance that any lawyer engaging in the collaborative law process will be like minded, keen to retain an amicable environment and focused on achieving a solution which is palatable for everyone involved.
Keeping up to date – collaborative solicitors are part of a network of fellow collaborative solicitors which encourages the sharing of new techniques and guidelines and enables us to consistently be in the best position to deal with our cases.
Collaborative divorce is not for everyone and couples need to be in agreement that they wish to adopt this approach, however, for those who do opt for this route often have a much better experience of the process of separation and reach results more quickly.
Who is suitable for collaborative divorce/Law?
Collaborative Law is commonly used to deal with financial disputes concerning children, spouses or civil partners on separation, breakdown of marriage or civil partnership. It can also be used to resolve property disputes between former cohabitees and financial arrangements for children of unmarried parents on separation or relationship breakdown. It is not confined to Divorce matters and covers a wide variety of family related matters.
It is not suitable where there has been domestic violence or abuse, where one party cannot or will not be represented or there is a significant imbalance of power in a relationship. It is unlikely to be appropriate if mediation has been unsuccessful or where the issue between the parties is a binary one of fact requiring the inquisitorial engagement (or better known as examination) of the court to determine.
It is essential for collaborative law that both parties are actively willing and seeking to reach an agreement and there is room for negotiation and compromise on both parts. Collaborative law will not succeed when there is no room for discussion or compromise on the points of dispute in question.
What are the pros and cons?
The advantage of Collaborative Law is that it promotes a better ongoing relationship between the parties than traditional adversarial (Court proceedings/hearing) litigation. This is particularly beneficial for parties who share custody in their children, the more amicable the negotiations can be, the better the relationship and environment it will be for any children involved.
In Collaborative Law the parties are able to speak directly to each other as issues arise in a safe, confidential environment leading to direct discussion and resolution, rather than through various 3rd parties where the original message or its tone can be misconstrued, leading to unnecessary tensions. As the parties state what they hope to achieve through the Collaborative Law process in their anchor statements, this encourages them to focus on achieving a mutually satisfactory outcome.
The advantages of four-way meetings include:
- The parties are aware at every stage of what matters to the other in negotiations.
- Nothing is hidden from either party and nothing is going on “behind the scenes”.
- The parties can speak at any time about matters that are important to them as they arise.
- Each party can develop trust in the other’s lawyer.
- Questions can be asked and answered immediately, or issues clarified so there is less room for misunderstanding between the parties.
- There is no lengthy or aggressive correspondence between the lawyers.
- Legal privilege is waived.
The Collaborative Law process takes significantly less time than the traditional court process and is generally less expensive. The parties and their lawyers control the timetable, rather than controlled by the Court, which can be frustrating and lengthy.
(Perhaps a brief discussion about the trend in ‘conscious uncoupling’ and breaking the myth that all divorce has to be acrimonious).
Reform of Divorce law is a common topic. Debates have played with the idea of a “no fault divorce” in recent years, discussing a need for “conscious uncoupling” where neither party are at fault, but who’s paths have grown apart for a number of reasons where both parties remain amicable.
The traditional divorce route only plays advocate for the irretrievable breakdown of a marriage due to the fault of one (or sometimes both) of the parties. Currently via the traditional route, the only valid reasons for divorce which have to be proved or admitted are: fact A Divorces (Adultery), fact B Divorces (Respondent’s behaviour), fact C Divorces (desertion for 2 years with consent of the other party) and fact D Divorces (desertion for 5 years without the consent of the other party). As you can see, there is a very defined need for one of the parties to the marriage to have “done something wrong”. This is not always the case.
The traditional route does not make allowances for couples who just simply wish to part ways. This is where collaborative divorces come in to play, for those separations which are not caught by the net of traditional proceedings.
On the other hand, it is also a great benefit for same sex couples who would have otherwise considered dissolution (the civil partnership equivalent of divorce). As it stands, however archaic, the current law surrounding dissolution does not allow for a civil partnership to be dissolved due to an act of adultery with a 3rd party of the same sex. For reasons such as this, a collaborative Divorce (or dissolution in this case) may be the best course of action.
