No-fault divorce - a step forward but what about the bigger picture?

When people first see Jonathan da Costa, head of family law at Boys & Maughan, they have usually made the decision to separate or get a divorce and started discussing it with their partner. At this point they are typically unaware of the variety of options for their separation and often assume there is little alternative other than confrontation via letters, emails and a courtroom.

Jonathan is currently Boys & Maughan’s only collaborative divorce solicitor but he is amongst an increasing number of lawyers across the country who firmly believe this approach is most likely to achieve the best possible solutions for clients and their families.

Government plans to introduce no-fault divorce have been in the news of late and are certainly a step forward. The new law will, however, only apply to the actual divorce process and often the greatest acrimony, delay and expense is in sorting out the financial settlement or the living arrangements for the children. In these circumstances collaborative is, in our view, going to continue to often be the best way to resolve issues.

What is a collaborative divorce?
Collaborative is a process where both parties commit to resolving their conflicts without resorting to court proceedings. Each person appoints their own specially trained collaborative lawyer and the separating couple meet with their lawyers to work things out face to face, usually at either solicitor’s office. There is no need to ever go to court.

The couple decide what they want to talk about, not the lawyers, who instead guide the detail of those discussions. Each lawyer can give legal advice because they are not neutral, unlike a mediator.

Legal advice will be constructively given as part of the process. Jonathan will focus on your interests and generating options. Both lawyers will encourage an appreciation of the separating couple’s concerns and maintain a calm, constructive and respectful approach throughout the negotiations, whilst being solution focused.

Collaborative divorce will encourage you to look at the wider picture and seek improved outcomes for the whole family. Your children’s welfare will always be prioritised.

Other professionals, such as jointly instructed financial advisers or child consultants, can be invited to meetings if you both agree it is appropriate, and Jonathan can assist with referrals to specialists with appropriate skills.

In addition to the clear focus and integrity you would expect from any good solicitor, you can also expect a collaborative lawyer to pay particular attention to being supportive, creative and flexible.

Both you and your partner should emerge from collaborative at the very least reasonably satisfied with the outcome.

Who would a collaborative divorce be suited to?
Collaborative could be the best approach if both of you would like to discuss matters honestly and openly and you want to come to a solution together.

Collaborative lawyers focus on minimising confrontation and helping couples put their differences aside, so they can find lasting solutions in the long-term interests of all of the family.

Many of our collaborative law clients have children whose arrangements they wish to get right alongside their financial arrangements. When things go well, which they often do, special times of the year like birthdays can continue to be enjoyable even after separation.

It is an inescapable fact that whichever way you look at divorce you are bound to continue to feel a sense of sadness. Some clients are anxious about being in the same room as their partner but after a few collaborative sessions things often improve. It is far better than sitting in a courtroom together.

Sadly it is still all too common for adversarial solicitors, practising a hard line method with a focus on court processes, decimate families, causing particular harm to children. Collaborative stands for the opposite of this approach.

The collaborative process is not appropriate for everyone but in our experience it consistently leads to more lasting and positive outcomes and is suitable for many couples who currently end up in court.

Will a collaborative divorce go more smoothly?
Clients who deal with their separation using the collaborative process often feel more settled about their future and benefit from improved levels of communication with their partners.

Jonathan will help you prepare for each meeting. He will listen, check he has understood you correctly and ask open exploratory questions. During the negotiations Jonathan will seek to find common ground, whilst always focusing on your perspective and avoiding over-persuading. He will be constantly mindful that this is a major life event for you.

The number of meetings before your final meeting will be controlled by you and your partner. At the final meeting various documents will be signed to bring about the end of your marriage or partnership. You’ll discuss potential future pitfalls and agree how you would like to handle them. The divorce will then be finalised on your behalf.

What are the different stages for a collaborative divorce?
If you choose a collaborative approach, you and your partner will be in control of the timetable and number of meetings.

At your initial meeting with Jonathan he will explain the collaborative process and the other options available to you. You will be asked to identify your priorities and the issues that really matter to you. Jonathan will help you evaluate your options and consider your objectives. He will also talk to you about your vulnerabilities, fears and concerns and at the end of this meeting it should be clear whether a collaborative divorce is appropriate for you.

Before your first four-way meeting, Jonathan and your partner’s lawyer will have spoken to one another and discussed the agenda for the meeting and some of the practicalities such as the location and length of the meeting. The lawyers will also talk about how advice will be given. They will identify their client’s priorities but will not negotiate with one another.

At the first four-way meeting everyone will discuss and agree how the process will work. You will then sign a four-way participation agreement.

If you have any children, you are likely to discuss the impact of the situation on them at the first meeting. You will also talk about how financial information will be shared and assign tasks for the next four-way meeting.

The collaborative process requires you to play a considerable role in the discussions and Jonathan will ensure that you are fully involved in each meeting and that your views are heard.

Will I be able to control how much my collaborative divorce costs?
Yes, you will be able to exercise significant control because you will control the number of meetings. If you take the more traditional approach to divorce, the court will control the process.

The collaborative process focuses on the separating couple and working out an agreement. It gives the couple the ability to decide what is discussed and when.

The goal is to reach an agreement that you are both comfortable with and that is much more likely to happen by working collaboratively. Once you’ve reached an understanding, it’s then far easier – and therefore quicker and cheaper – to draw up a legally binding agreement.

I think collaborative divorce might be right for me. What are the next steps?
You have two options. You could choose a free initial meeting with Jonathan to identify your options, possible solutions and discuss costs. This approach might suit you if you wish to test the water before making a decision about whether to use our services. We recognise that it is vital you are comfortable with the family lawyer you instruct.

Alternatively, you could make a fixed fee appointment with Jonathan. Sometimes attempting to talk through the issues at a short meeting is difficult or impossible and you might want us to confirm our advice in writing. We therefore offer a detailed initial meeting for £100 plus VAT (£120), followed by a letter setting out our advice. Our only condition in relation to this option is that your legal proceedings have not already started.

You can download the text from this article as a PDF via our family law fact sheet page

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.