Resolving your divorce differences in alternative ways: collaborative divorce

The stress of a divorce and separation can be minimised if you and your partner are able to reach an amicable agreement about how your assets are divided and about arrangements for any children. 

What is collaborative divorce?

A collaborative divorce offers separating couples a means of resolving those and other issues stemming from the breakdown of their relationship in a manner where they both take an active part in the process. To make this work, a lawyer who is trained in collaborative law helps each of you to reach a settlement.

Is collaborative divorce the same as mediation?

Collaborative divorce and mediation share a number of similarities; they are both:-

• Methods of alternative dispute resolution (ADR)
• Focused on resolving issues as amicably and as sensibly as possible
• Aimed at settling issues yourselves rather than letting the courts decide
• Voluntary processes that you can withdraw from at any time
• Without prejudice, which helps to encourage open and honest discussions on both sides.

But there are important differences

1. The process of mediation in divorce

In mediation, it is usual for there to be three-way meetings between you and your partner and an agreed mediator. The mediator facilitates the meetings and helps both of you to resolve issues, but it’s important to note that he or she is impartial and cannot advise either of you. If mediation is not successful, then you can make an application to the court. You will still need advice from a solicitor during mediation. The solicitor doesn’t take part in the mediation itself but can help you decide whether any proposed settlement is in your best interests. You can continue to use the same solicitor throughout the entire mediation and court process.

2. The collaborative divorce approach 

The collaborative divorce process uses four-way meetings between both of you and your respective collaborative lawyers. There is no mediator or neutral third party to facilitate the discussions unless you both agree that you want there to be. Generally speaking, the two of you and your lawyers work together collaboratively to set the agenda, agree the issues and the timescale you want to work to. The lawyers are there to advise you throughout the process, but their role is not to be your advocate nor to steer the negotiations. If the collaborative process is not successful, you can still apply to the court, but unlike mediation, your collaborative lawyers would not be able to represent you in those proceedings. Instead, you will need a different solicitor to help you.

 What are the pros and cons of collaborative divorce?

The advantages

The advantages of a collaborative divorce are wide ranging: broadly it is a process intended to empower both of you, giving you the power to set the agenda, the venue and the issues to be addressed. It allows you to have an active voice in your own divorce and is intended to keep the lines of communication open and effective between you and your partner long after the collaborative divorce has concluded.  Because you are making your own decisions, rather than a court making them for you, you can avoid the risks associated with litigation and the significant delays that courts are facing nowadays. A collaborative divorce is also likely to be significantly cheaper than if you go through contested court proceedings.

The disadvantages

A collaborative divorce is likely to be more expensive than mediation, although as we mentioned above, mediators cannot advise you during the process and so it is crucial that both of you take independent legal advice from your own solicitor on any agreement you reach in the mediation environment.  The other disadvantage is that if the collaborative process fails, both parties then have to instruct new solicitors and start again. That being said, it is precisely this fact that can give both parties in a collaborative divorce the incentive they need to make sure the negotiations don’t fail!

 What is the divorce process?

The divorce process itself is the same regardless of whether you choose to resolve your divorce differences collaboratively, through mediation, via court proceedings or anything in between. One or both of you can start your divorce on the government’s online portal. If you are a sole applicant, the court will send your application to the respondent (your partner) who will need to complete an acknowledgement. There is then a 20-week cooling-off period after which you can apply for the conditional divorce order. Six weeks after that, you can apply for the final divorce order.

Why do I need legal advice about the financial aspects of my divorce?

• Without legal advice, you won’t know what you are entitled to and therefore you won’t be able to make an informed decision on any settlement being discussed. Legal advice will also help ensure you talk about all the issues that might affect you in the divorce settlement. 

• The financial claims that arise when you divorce do not end when the divorce is made final. They remain open until they are formally determined by the court, or until one of you dies or remarries, but it is only the person who remarries who loses their claims against their former spouse – the claims of the former spouse remain open until they themselves remarry.

• When your divorce is finalised by the final divorce order, you will lose any right to inherit from one another and any benefit from any widow(er)s pensions. All these factors mean that it is in your best interests not to conclude the divorce until the financial aspects are formally settled, and that has to be done via a court order.

We have four collaborative lawyers at Birkett Long – why not give us a call and see if a collaborative divorce may be right for you? We offer a free initial 15-minute telephone conversation during which we’ll help you decide on a possible course of action. Our lawyers are friendly and approachable and totally understand that this is a stressful and life-changing decision for you.