The concept of a collaborative divorce is based on the shared belief of all those participating, that it is in the best interests of the parties and their families to avoid the often adversarial nature of contentious court proceedings and to adopt a conflict resolution process that does not rely on a court imposed resolution. Such an endeavour relies on an atmosphere of openness, honesty, co-operation, integrity and professionalism, with the ultimate goal being the future well-being of the parties and their children.
When parties elect to proceed on a collaborative basis, they enter in to a contract to commit to resolving all issues without court intervention. The parties agree to full open and honest disclosure and to engage in informal discussions for the purposes of resolving these matters, often by way of 4 way meetings with all parties present. The role of the legal advisor does not change, in that they are still expected to protect and attend carefully to their respective clients’ interests, and advise on the applicable law, however, the parties give good faith undertakings as to how negotiations will be conducted. For example, all participants agree not to take advantage of inconsistencies, misstatements of fact or law or other miscalculations. With regards to issues relating to children, the parties are expected to devise amicable and well-informed solutions that promote the child’s best interests. As opposed to using the threat of court, if negotiations stall, the professionals agree to seek out mutually acceptable solutions that meet the reasonable needs of each party and any child.
The collaborative process will not be suitable for everyone and will not always result in a successful outcome. It will not be appropriate in cases where one party knowingly withholds or misrepresents information for an unfair advantage, or if there is secret dissipation of assets, ongoing physical or emotional abuse, or secret preparation to engage in litigation. If a collaborative approach is underway and negotiations breakdown, resulting in the requirement for court intervention, the parties will be obliged to instruct alternative legal advisors to pursue this process. Alternatively, the parties can at any point themselves decide to terminate the process, should they wish to do so.
The origins of this collaborative approach to divorce came about from a desire to change the often negative impact of marriage breakdown on families and whilst divorce is never a happy event, it is hoped that with this sort of an approach, any distress and upset to all those concerned, can be kept to a minimum.
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