On 6th April, 2011, everything changed for Family Law. New rules were introduced that affect all new family matters begun after that date and which may also be brought into those already running. It is a major upheaval.
But, – not really. The change means different forms to complete and different emphasis, but the law remains the same. The court still has to weigh the needs and resources of married parties when deciding financial division. It still has to consider the welfare of the children against a checklist (fior example, the ability of each parent to provide for the children’s needs).
What is new, is the requirement to consider participation in mediation. Except where it would be wholly inappropriate, those wishing to “go to court” on financial and children issues, will be asked to produce a certificate to that effect.
This is a good thing. It reinforces the mesage from Resolution (the Family Law professional association) that disputes following a separation should be handled sensitively, and that those invoved on each side should be treated with respect. Both of these aims can be achieved through another process called Collaborative Law. This converts negotiation into a supportive exploration of solutions with legal advice on tap.
How does Collaborative Law work? The support and advice is provided by each party’s solicitor and from a written commitment to work constructively, signed at the outset by all involved. The negotiations are conducted at structured meetings which all four attend, thus each knows what to expect. The separating couple may ask both solicitors to guide them through the financial separation or the emotional turmoil of sharing the children. The solicitors apply the law, but also the wishes of their clients and will be committed to finding solutions that fit as many requirements as possible. The result of this dispute resolution process is usually an agreement that can be put to the court for its approval.
The written commitment binds the solicitors; they cannot then take an aggresive stance against their client’s spouse/partner by issuing contested proceedings. It encourages trust to be re-established and provides a financial incentive to stay at the negotiation table. It changes the emphasis for separating couples, who cannot help but see the difficulties from both points of view.
It is not a process for everyone, but it is very useful for an increasing number of couples who wish to separate with dignity and/or must remain committed to co-operation for their children. It fits well with the intentions of the court that separating couples really must try to sort out their differences before asking assistance of the court.
Ann Matthews
June 2011
