To litigate or to collaborate?

This week marks “Good Divorce Week” which is a campaign run by Resolution. They wish to highlight the possibility that separation and divorce do not need to be acrimonious and can be amicable. Indeed, one of our favourite phrases here at Caritas Legal is “An Amicable Divorce is Possible!”

When you decide to separate, there can be many things which require to be resolved – finances and arrangements for any children of your relationship, or pets. Often when couples decide to separate they believe that they will have to litigate – that is, they believe they will have go to court, give evidence and have a ”battle” over their finances, resources and children. In reality, that is not usually what happens.

What is litigation?

Litigation involves raising court proceedings at the appropriate court. This is done by way of an initial writ in the Sheriff Court and by way of a summons in the Court of Session. The writ will seek divorce based upon either a period of separation, unreasonable behaviour or adultery and will seek financial orders and/or orders in respect of the children of the marriage (if applicable) The action may resolve without going to proof (a full evidential hearing) or it may require to go ahead and have witnesses and parties to the action giving evidence, perhaps along with expert witnesses if required.

Litigation can be necessary for example if one party refuses to co-operate or if there is a risk that a party will dissipate assets. However, utilising litigation in the majority of circumstances simply removes the decision making power from the parties as it is the court who will make the final decision and the decisions may not be palatable to either party. Litigation can also be very expensive and costs can be increased by the actions or inactions of the other party.
Whilst in some cases litigation will be the best way to proceed, there are other ways in which couples can progress their separation, such as the collaborative process.
What is collaborative practice?

Put simply it is a mutual approach to agreeing long term arrangements in respect of separation. Legal and financial matters are resolved as well as the ongoing arrangement for any children of the marriage. The goal is to minimise conflict between couples and ultimately put children first while ensuring that there is a mutually agreeable outcome which is beneficial to all parties. The other aim is to reduce the possibility of future conflict or difficulty arising from the separation.

Who is involved?

Both parties instruct their own collaboratively trained solicitor to begin the process. Thereafter, the process is multidisciplinary: using a financial adviser (known as a financial neutral) who can assist parties with reality testing and realistic planning for the future for both parties and any children of the relationship; and family counsellors or psychotherapists who can assist parties with dealing with the emotional fall out from separation.

What is the focus of the collaborative approach?

The focus of the collaborative approach is everyone working together to reach a mutually agreeable outcome. The purpose is to lead to the best outcomes for everyone in as positive and united a settlement as possible.

Many people can be anxious regarding the cost of the process but it is actually on par with traditional negotiations and costs far less than court proceedings which can become protracted and result in parties being very positional. As the focus is a mutual process, parties are focused on the issues and usually far quicker to come to resolution.
The purpose is to determine shared interests, for example matters relating to children and to focus on those to try to work together to make this happen.

The process

Parties attend joint meetings with their solicitors as well as with financial neutrals and relationship therapists (if appointed) and all work is progressed this way. When parties have reached agreement, a separation agreement is created in writing. If the collaborative discussion phase is successful then moving forward to the separation agreement is generally quick and dealt with by parties’ solicitors.
The collaborative process is a way in which parties are able to move on from their separation and with their separate lives in a positive manner, to be able to look back at the process without anger or regret and is a process which many couples could benefit from in this situation.

Next Steps

Further information can be sourced on the Consensus website – www.consensus-scotland.com
Or to discuss the best way forward for your situation, please contact our Danielle Stevenson who is collaboratively trained on 01383 431 101 or danielle@caritaslegal.co.uk

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