Collaborative law is a legal process that works within family law that enables parties to take a positive decision to work together, with the support of their solicitors, to reach an agreement. This can relate to the parties' separation or divorce, to discuss their children and their finances.
This is an alternative form of dispute resolution, with a key element being that the parties agree at the outset not to go to court unless the collaborative law process entirely breaks down.
When can collaborative law be used?
Collaborative law has been widely used on divorce or separation, to reach agreement in respect of finance or children matters. Celebrities including Robin Williams, Madonna and, it is rumoured, Ben Affleck and Jennifer Garner, have used the process when divorcing, taking advantage of the privacy the process offers, given that it takes place outside of court, and the increased ability to reach agreement on friendly terms and, accordingly, minimise spending on legal fees.
What is less well known is that collaborative law is also available much earlier in a relationship. Collaboratively trained lawyers can work with their clients to provide legal advice (as per any other process), but, when using the collaborative process, this is with the clear benefit of enabling matters to be resolved in a more considered and nuanced way. It provides an opportunity for the parties to maintain levels of trust, by minimising acrimony between those involved. In turn, this can help reduce stress. The parties are far more directly involved, with their Solicitors, in negotiations and in making decisions that impact on them and their family. It is a solutions-based process, with the emphasis on problem solving.
The collaborative process can be used in all areas involving a family, but a particular focus in this article is when parties are getting married. There may be assets that they are bringing into this new relationship that they might want to protect.
How can I use collaborative law for my pre-nuptial agreement?
The collaborative process can greatly assist the parties in discussing and agreeing the terms of a pre-nuptial agreement. This would entail each of the parties instructing a solicitor who has been collaboratively trained; "four way" meetings are then held, at which the parties receive the advice of their solicitors in an open, transparent way. The terms of the pre-nuptial agreement can be discussed and agreed upon, with minimal correspondence and the benefit that the parties work together to ensure they are both happy with the agreement.
The above is in contrast to the traditional operation of the law, in which each party's solicitor advises them on protecting their own interests and there is a greater likelihood that they can become entrenched in their positions or try to denigrate each other or each other's case. Accordingly, use of the collaborative process can result in reduced costs.
In the context of trying to agree a pre-nuptial agreement, the collaborative process' benefits of openness and collaboration are well aligned with both parties' planned future lives together. Afterall, this should be a positive and exciting time, and not one where the parties may be questioning the basis of their future lives together.
Our experience of collaborative law
"Pre-nups" are probably the best-known type of nuptial agreement but there are also post-nuptial agreements and other types of agreement within family law: cohabitation agreements and separation agreements. All of these can be prepared within the collaborative process.
The collaborative process can also assist parties who are separating and divorcing and provide solutions where other processes focus much more on conflict.
Paul Wild, our Head of Department, has used the collaborative process to agree and draft pre-nuptial agreements. He also has significant experience of using the collaborative process to help separating and divorcing parties, particularly where the parties are very keen to preserve their relationship. Where parties have children, the use of the collaborative process has supported their co-parenting relationship to benefit their children and their overall relationship as parents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
