To assist you and your spouse/partner to resolve all matters arising out of your separation in a dignified and respectful way for the benefit of the whole family.
- Both you and your partner retain separate specially trained lawyers to assist you in resolving issues without going to Court.
- Your collaborative family lawyer acts for you, providing legal advice and guidance throughout the process, but working with your partner and his/her lawyer as part of a team to help achieve settlement.
- You, your partner and your lawyers agree to work together in a respectful, honest and dignified way to try and reach settlement without threatening to go to court. All sign an agreement disqualifying your collaborative lawyers from representing you at Court if the collaborative process breaks down. Neither of the lawyers, nor their respective firms can then act for you although they will still be bound by confidentiality about the negotiations. You would need to instruct new lawyers to proceed to Court.
- Issues are discussed and hopefully resolved in ‘4 way’ face to face meetings between you, your partner and your lawyers. Settlement discussions take place in your presence which helps ensure that you and your partner remain in control of the process. The process thereby helps improve future communication, particularly important when you have children.
- You and your partner have a duty of full and frank disclosure – all information and documents are provided within the process.
- Discussions focus on the needs and interests of you, your partner and the children.
- Meetings are arranged at the start of the process without you having to wait for court dates. Provided all the participants enter the process in good faith, the process can be faster, cheaper and less acrimonious than court proceedings to reach a resolution.
- You and the lawyers can work as part of a group of professionals, including counsellors, mediators and child and financial specialists to draw on the skills of other professionals to assist you and your partner in the process.
- For issues requiring expert opinions (for example an accountant to give tax advice or value a business) the collaborative team will normally jointly instruct independent consultants.
This can of course happen as it does in mediation and in conventional legal representation. Under the terms of the collaborative agreement, the lawyer must withdraw from acting from their client if he/she has withheld or misrepresented information intentionally or is participating in the process in bad faith. Likewise, it is open to your collaborative family lawyer to advise you to withdraw from the process if they do not consider that your partner (or indeed their lawyer) is keeping to the terms of the agreement.
If you consider that your partner is unlikely to be honest during the collaborative process or is likely to lie about his or her financial affairs, then collaborative family law may not be a good choice for you.
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The settlement agreement reached during the Collaborative Family Law process is no different from any other negotiated settlement. If the outcome of the settlement would have been different if such information had been available, then it is open to you to seek to overturn the agreement, even it is has been made into a court order.
- In mediation the mediator is prohibited from giving either of you legal advice. A mediator is neutral.
- The mediator is there to facilitate communication between you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after.
- Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process.
- Provided agreement is reached your collaborative lawyer can act for you in preparing the financial papers.
- In collaborative family law, you each have your own lawyer throughout the process advising you both. If you or your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation.
- Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue.
You and your partner must sign a binding agreement to provide full disclosure of all financial documents and information that relate to the issues
If collaboration fails, then your lawyer will no longer be permitted to represent you. This situation motivates all parties to make every effort to reach a mutually acceptable settlement, whilst taking into account you and your family’s interest. If things become difficult, the parties are encouraged to work together and Court is less likely to be used as a threat.
It is essential to seek advice on the tax implications of separation, divorce, and any proposed settlement at the earliest opportunity in order to minimise the tax cost of the divorce. The goal must be to ensure as much as possible is available for distribution between the divorcing spouses. Space does not permit an explanation of the Income Tax, Capital Gains Tax and Inheritance Tax issues that may need to be considered, suffice to say that they are relevant to the divorce settlement and to the future tax position for both.
Tax is not straightforward, so you should seek advice. Importantly, there is no immediate tax charge on the transfer of assets under a divorce settlement for either IHT or Income Tax purposes. However, there are immediate Capital Gains Tax considerations for any transfers between spouses following permanent separation.
Whether a limited company, partnership, or sole trade, it is essential to find an expert to value the family business. The methodology used depends on the nature of that business but, essentially, the value of a business will depend on what a willing buyer is prepared to pay for that business as a going concern in its current form and location. However, in most divorce cases, there will not be a sale as the business income is likely to be required to support both parties after the divorce. There are three common methods of valuation. Two apply when valuing either the entire share capital of the company (because the spouse is the sole owner) or where the spouse has a controlling interest. The third is used to value minority shareholdings. Typically, the family Court does not prefer a particular method of valuation, but considers the most realistic options for a family in each case.
