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How to take control of your divorce

An amicable agreement reached after a number of meetings, or a — most likely — stressful and costly court action.

Which approach to divorce sounds better?

We don’t yet know the true impact the coronavirus pandemic will have on Scotland’s divorce statistics, but the combination of close confinement in lockdown, together with money and employment worries are hardly ideal for relationships to thrive.

And, for some, lockdown will prove the last straw.

At least for those who have decided to split, there is some comfort that collaborative divorce may be the best option.

What is collaborative divorce?

Collaboration puts both partners in the driving seat of the separation, allowing them to take control of the discussion and what the settlement might look like.

It’s a non-confrontational approach to agreeing the legal, financial and practical arrangements for separating. Both of you will agree you won’t involve, or even threaten to involve, the court.

And, each of you will need to instruct your own collaboratively trained solicitor. At the start, you’ll meet with your lawyer separately to discuss the process and set up the first meeting.

At this session, everyone, including the lawyers, signs the participation agreement, which sets out the rules and conduct for the process.

Together you and your spouse, or partner, will identify what’s important to each of you when it comes to the likes of assets, living expenses and, of course, children.

You’ll also look at what needs to be taken into account in later meetings, and whether any other collaboratively trained experts need to be involved, such as specialist financial advisors called financial neutrals as well as family consultants.

Importantly, this initial meeting can also deal with any urgent matters like interim financial arrangements, or what happens with any children.

Afterwards, you’ll both get a signed copy of the participation agreement and will be sent the minutes as a formal record of what’s been agreed and what’s next.

Before each subsequent meeting, you’ll see an agenda, as well as a list of any tasks you’ll need to complete and the meetings continue until you reach an amicable consensus, which the solicitors set out in the formal written agreement, signed by you both.

Then it’s a pretty straightforward process for the courts to deal with the divorce.

Civil justice figures, published in April 2020, showed in 2018-2019, 61% of divorces granted in Scotland used the simplified procedure.

This is available to couples who have already resolved their financial matters outside of court and who have no children under the age of 16.

If financial matters are resolved, but there are children under 16-years-old, you can apply for an undefended divorce.

This costs more, but is still considerably less than having everything contested in court, which can run into thousands of pounds, before expenses.

Interestingly too, some clients have found they’ve ended the collaborative divorce process with a much better relationship with each other than when they started. This can be really important, for example, not just for your children, but if you’re still close to your former in-laws.

The non-collaborative approach

Unlike collaboration, there’s a lot of room for protracted back and forth.

Some of this correspondence may cover the same issue continuously and what may have taken half an hour at a meeting, may end up taking several letters before being resolved.

The most concerning point for couples who don’t use the collaborative approach is the constant threat that things will end up in a lengthy court battle.

And in that situation, you’re reliant on the court timetable and that can mean long waiting times with no quick resolution.

Those times could be even longer now because courts are working through a backlog after effectively having to close to all but the most essential matters during lockdown.

Unfortunately, court actions carry with them a weight of uncertainty and take decisions on finances and child matters completely out of the couple’s hands.

There is, of course, the option of a joint meeting, where you and your partner can attempt to resolve matters, but that doesn’t come with the safeguards and calm approach we see often in collaboration.

Ultimately, the risk of court action remains.

Of course, court is the only option if emergency orders are needed in situations where, for example, a child may be in danger, or if one or other of you don’t agree to collaborate. And particularly if someone isn’t engaging at all.

If a collaboration breaks down, you can seek court involvement, but the collaborative solicitors will have to withdraw at that point.

They would also need to withdraw if one or other of you doesn’t stick to the participation agreement.

The best approach for you

Everyone’s situation is different.

Whether collaboration will work for you will depend on your own circumstances and, importantly, whether your partner is willing to take part in the process.

But, generally speaking, a faster, potentially cheaper, and less stressful approach that’s likely to mean a positive outcome for you and your family is surely worth considering when it’s time to move on.

Emma Somerville

Senior associate Emma supports clients, both in and out of court, with a wide range of other family matters, including: separation; child residence and contact; cohabitation agreements; adoption; and divorce. She also advises on the financial aspects of separation and divorce alongside other family law matters such as guardianship and exhumation. Emma is a member of the Family Law Association and is a collaborative solicitor and member of Consensus Collaboration Scotland.

Posted, 22 July 2020 by Emma Somerville
Categories: Coronavirus | Coronavirus and family law | Family law | Insights | Private client