A Different Approach To Divorce

The news that no-fault divorce is to be introduced onto the statute books was greeted enthusiastically by many family law practitioners in the belief that a no-fault system should introduce a less combative attitude to divorce. The removal of the requirement to fabricate a situation where one party is almost inevitably cast as ‘victim’ and the other as ‘villain’ opens the door, in my view, to the wider use of collaborative law which encourages couples to look ahead rather than chewing over past transgressions.

Collaborative law can achieve a fair outcome

Needing to prove a marriage has broken down irretrievably by attributing blame inflames an already fractious situation. By removing the need to find fault, couples can, in the aftermath of their decision to part, start to explore positive ways of achieving their separation without involving the court. Used widely in the States and Canada for nearly thirty years, the take-up of collaborative law in the UK, despite having many enthusiastic proponents, has been patchy. The shift in divorce legislation towards a no-fault system should, I believe, lead to more family practitioners re-evaluating the usefulness of collaborative law as an alternative to court for achieving a fair outcome for both parties

Guiding, not leading

If I am right, and collaborative law is more widely embraced, then lawyers looking to add it to their legal arsenal will need to recalibrate their traditional, unilateral approach to advising divorcing couples. A collaborative lawyer requires a different mindset; we are there (as one family lawyer succinctly notes) to “lead from behind”. When couples decide to deploy collaborative law, having formally rejected litigation, each will appoint a lawyer and, having outlined their motivation for embarking on this route, will engage in a series of four-way meetings to explore how they see their respective futures and what they want to get out of the process. To achieve a balanced outcome, collaborative lawyers are trained to use a light touch, guiding the parties to find their own solutions, rather than leaving the final decision on allocation of assets and custody arrangements to a judge.

Collaboration not confrontation

The collaborative system is predicated on all parties actively wanting to avoid conflict and prepare for life post-divorce that is not riven by bitterness and endless recrimination. Its purpose is to help couples reach the right settlement for them and their children and, although initial meetings can be very emotional, the presence of the lawyers to keep the conversation on track can be supplemented by other non-legal experts to help the couples work through particularly difficult aspects of the negotiation. Finances and children are, understandably, the most frequent sticking points and the presence of a child psychologist and a financial expert (for example) can help the parties to find a constructive way out of an impasse.

Nonetheless, collaborative law is not for everyone: it is totally unsuitable for abusive relationships and I would never recommend it for couples where there is an obvious imbalance of wealth and/or power or where one party is trying to gain a strategic advantage over the other. Those couples who opt for collaborative law must want to avoid litigation, must be honest, open and constructive, and must look towards the next stage of their lives. Without the need to apportion blame, both parties can reflect more on the future and less on the past. For couples with children who need to find a constructive way to communicate, post-divorce, collaborative law may just be the answer.


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