A New Approach.
The area of Family Law is constantly changing with substantial amendments to the Law occurring every year.
There is however one constant statistic that has stood the test of time and the many changes in Family Law and the various versions of the Family Law Act since it was in enacted in 1975.
Litigation is expensive, stressful and uncertain. It can also involve considerable delay with Courts not allocating final hearing dates until approximately 12 months after proceedings have been commenced. It is also common for a Judge not to deliver a judgment for up to several months after a hearing takes place.
Over the years, the role of competent Lawyers has been to assist separated spouses achieve negotiated solutions to avoid litigation unless it was necessary. One disadvantage of the traditional negotiation model was that if negotiations broke down, one or both parties would resort to litigation to force an outcome, which significantly increases the legal fees of both parties.
Several local firms of Solicitors in the Macarthur Region have formed the Macarthur Collaborative Law Group. Collaborative Law is a new approach to resolving family law disputes which involves both spouses and their Solicitors signing a legally binding contract which requires outstanding issues to be resolved without going to Court. Not every case is suited to the Collaborative Law process.
A successful outcome using the Collaborative Law approach requires the following from both spouses and their Lawyers:
- Commitment to negotiation without resorting to litigation.
- A financial commitment to the legal fees incurred in the Collaborative process (part of the Collaborative Law Agreement states that all documents produced during the process are protected by confidentiality and if litigation does occur, you need to instruct a new firm of Solicitors, and no documents from the Collaborative Law process such as valuation or accounting reports can be used in any subsequent litigation).
- You and your spouse need to be prepared to reach a compromise on areas which are in dispute.
- You and your spouse need to be completely frank and honest with each other in relation to disclosure of all relevant financial details.
Collaborative Law is not appropriate in places where:
- One or both spouses are not willing to compromise.
- One or both spouses are not willing to make full and frank disclosure.
- One or both spouses are not willing to co-operate with each other.
- One or both spouses has an intention to â€œhave their day in Courtâ€.
- There has been violence in the relationship.
- One spouse has either dominated or attempted to dominate the other spouse either during the relationship or after separation.
What happens if Collaborative Law does not work for me?
If the dispute cannot be resolved using the Collaborative process and one party decides to litigate, then both of the current lawyers must withdraw and cannot act for either party in the litigation. This ensures that each lawyer has the maximum motivation to work hard to achieve a settlement by negotiation.
If litigation is commenced after the Collaborative Law process has commenced then all of the expenses that have been incurred during the Collaborative Law process will be effectively wasted.
Therefore, the Collaborative Law approach should only be considered by you if both you and your spouse are suitable participants in the process.
Advantages of Collaborative Law
If you and your spouse are able to participate in the Collaborative Law process then you will benefit from:
- The fact that the settlement process is client driven.
- You are not constrained by arbitrary dates imposed by a Court (in litigated matters, nomination of future callover dates by Courts means that in many cases nothing further occurs in a matter for several months).
- The final resolution of all outstanding matters can occur much faster than if litigation is commenced.