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There are alternative ways to separate without having to go to court

16 July 2019 Family Law Macnabs Law

Separating from your partner can be worrying enough, without having the additional stress of a court making the decisions about your family’s future, which is why many separating couples are turning to a more collaborative approach.

Collaborative Practice offers separating couples a way to agree their legal separation arrangements and divorce without a court battle and with minimum conflict. They do so via supported discussions with collaboratively trained lawyers who ensure children are put first and minimise the conflict in the separation.

How does it work?

However you go about sorting things out after you separate there are some things that need to be done before you can sign a separation agreement:

  • making arrangements for the children – where they are to live and when they are to see the parent they are not living with
  • making sure you are able to meet your living expenses while everything else is sorted out and in the longer term
  • identifying the assets which needs to be divided, and their value
  • exploring the options as to how the assets can be divided

If agreement is reached on all these issues a binding legal agreement (separation agreement) is signed.

How does Collaborative Practice approach these tasks?

Collaborative Practice allows a separating couple to reach this agreement through a calm and respectful discussion which takes place around a table. It removes the need for lengthy correspondence between lawyers or having the matter decided through a court action. There are normally a number of meetings. Each meeting is carefully planned in advance by the lawyers who identify the issues which need to be discussed.

After each meeting, everyone involved receives a summary of the discussions, which identifies the next steps that each person has to take before the next meeting. This structure allows key immediate issues of concern, such as arrangements for the children and transitional financial arrangements, to be put in place quickly. Once matters are agreed, a legal agreement is signed and a divorce arranged if needed.

Who attends the meetings?

The separating couple attend the meetings with their lawyers and the lawyers work with the couple to help them reach agreement.

Other collaborative professionals can be brought in to help as necessary, such as financial specialists and family consultants.

What makes it different from other round table negotiations?

The Collaborative Process is based on a contract which all involved sign. It commits everyone, including the professionals, to acting with respect and integrity throughout the process. The contract also prevents the couple from instructing the collaborative lawyers to raise a court action if their negotiation fails. This means that all those participating in the meeting have an interest in reaching a successful conclusion.

Ruth Croman and Caroline Mackintosh are trained collaborative lawyers and members of Consensus Collaboration Scotland.

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