Collaboration could help resolve divorce financial settlements

Date: Oct 25, 2011

It is well known that the prospects of facing a court during a separation or divorce can be a stressful one, with an adversarial air often exacerbating what is already an emotional experience.

One of the main problems encountered by partners who enter into official proceedings when obtaining divorce financial settlements is that the litigation process does not often encourage the participants to be flexible in their expectations.

However, there are a number of avenues available to couples who are separating that can enable them to experience a more open and direct approach to developing an agreement that is acceptable, while still protecting their legal rights.

In Australia, the Family Law Act 1975 has established the principle of no fault divorce - meaning that the dissolution of a particular partnership is not considered to be the fault of one party or another - instead the only grounds are the irretrievable breakdown of a relationship as demonstrated by 12 months' separation.

While there are a number of ways to prove this in a legal sense, the problem remains of how to approach the division of a couple's assets.

If the partners are able to come to an amicable agreement on their own, then this can be settled out of court.

However, there are avenues available that allow separating couples who are not immediately able to reach a settlement to avoid the court rooms.

In 2011 Commonwealth attorney-general Robert McClelland launched the Collaborative Practices Guidelines.

Partners involved in a divorce negotiate through family lawyers and sign documents that promise they will not threaten to take the matter through the courts.

If an agreement cannot be reached and the case does need to go to court to be resolved then neither the lawyers nor the experts involved in the collaborative process can participate.

As the President-Elect of the Law Council of Australia in July, Catherine Gale said that that the collaborative practice had been growing in both popularity and application in the legal profession since its inception.

Explaining the basics of the new procedure, Gale said: "The lawyers work as a team using interest-based negotiation in lieu of an adversarial win-lose process.''

It could be that the more personal service provided by a trusted family lawyer encourages the parties to be flexible on their approach and allows them to be more articulate in expressing their preferred outcome - focusing less on the physical possessions at stake and more on the underlying needs of the individual.

While there has yet to be an in-depth study performed in Australia, research in Canada and the US has shown that settlement rates of over 95 per cent have been achieved using the collaborative approach.