Working together to plan a life apart

A growing number of couples are turning to collaborative law to resolve complex family law cases to avoid the cost, stress and emotional toll of protracted courtroom battles. This fresh approach enables couples to resolve the issues arising from separation openly, honestly and fairly, without seeing the inside of a courtroom.

Jones Mitchell Lawyers recently acted for a party in a property settlement which was achieved via the collaborative process. This case study saw:

  •  Our client and their former partner sign an agreement saying they would work together, with their lawyers, to achieve an outcome, rather than going to Court
  • Each party identify the things that were important for them to achieve in the property settlement
  • Each party make a commitment to be transparent in the exchange of information and fair in their dealings with each other

We worked closely with the solicitor for the other party in arranging meetings which took the case from beginning to end, including specific meetings to:-

  • Complete, explain and examine the financial disclosure by each side
  • Introduce an expert who assisted with valuation of some important items of property, and explained that valuation to the parties
  • Allow both lawyers to jointly explain to the parties the law which applies to their case, how a Court would determine that case, and the likely range of outcomes
  • Workshop solutions which achieved, for both parties, the interests they had identified at the beginning of the process

The challenges:

  • The parties were asset rich but cash poor, and this limited their options in terms of dividing their wealth, meaning that ‘outside the square’ thinking would be required to achieve the things identified as important to both parties
  • The parties were not in possession of the same degree of information, as one of them had run their family business, and one of them had been responsible for running their household and parenting their children
  • There were some unresolved emotional issues arising from the relationship breakdown which impacted on the process, seeing the parties agree to introduce a communications expert to help them, separately, get past those non-legal issues

Despite these challenges, an outcome with which both parties were content was achieved, and embodied in the form of a Binding Financial Agreement.  The parties were able to enter into this Agreement knowing that they had each received financial information necessary for them to make an informed decision, they had each received the same advice, and that they were free to take ‘ownership’ of the outcome which had been agreed.

In debriefing with the solicitor on the other side, we reached the conclusion that had the parties not elected to participate in the collaborative divorce process and made it work, then theirs was a case which:-

  • Would likely have gone to Court
  • Would have seen them involved in litigation for several years
  • Would have seen them incur fees double or triple that which the collaborative process cost
  • Would have seen a Court impose orders on them which likely achieved none of their interests, but instead forced a ‘clean break’

Both lawyers left the process knowing, without a doubt, that their clients were better off, financially and emotionally, as a result of having participated in the collaborative divorce process.

Though the Family Law jurisdiction is often looked upon as being very adversarial, this was a case in which not only the parties but also their lawyers, worked towards a common objective even when emotional issues made that difficult – a commitment which yielded tangible benefit for the family involved.

If you are interested in resolving your matter collaboratively, almost every State has organisations established to provide information about collaborative divorce, and their members are lawyers and allied professionals who have specific training in this form of alternate dispute resolution.  These organsisations have information on their members, allowing you to find a collaboratively trained lawyer in your area.

The first step is to have a conversation with a collaboratively trained lawyer about whether yours might be a case suitable for collaborative divorce.


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