Relationships, marriages and families have such enormous significance for us as the fundamental units of our society that we often forget that basically a marriage is a contract and the ending of it will have significant legal consequences.
Accordingly, when a relationship or marriage breaks down there are often a lot of very difficult decisions to be made by the couple separating at a time when they are most vulnerable. If there are children as part of the family or relationship those decisions will be painful and poignant. Discussions and decisions about the children’s future wellbeing, quite apart from all the property and financial decisions, are very hard at a time when there are often significant communication blocks between you and your partner/spouse.
Quite apart from all that, there are the consequential losses following on from a relationship breaking down that no one really thinks about until the dust starts to settle, like extended family and mutual friends. If you can,give yourself time to get some focus before taking advice. A good counsellor will assist you with getting a focus. Obviously, if there is an emergency situation you should take legal advice immediately.
You have a number of options as to how you settle matters consequent on the breakdown. Our legal system is an adversarial system. This means that two opposing stories are put before a judge who has to decide between the two sides as to an outcome.
The judge is confined by the applicable legislation in the manner in which he can determine the dispute or by previous cases taken and the decisions made by other judges. So, the first option is to put your case before a judge called a trial or hearing and be bound by the outcome determined by that judge.
Another option is to have your solicitor ‘hammer out a deal’ with the other solicitor leading to an agreement which can then be ruled by the court or dealt with as a binding contract.
Outside of the adversarial framework there are also a number of options. You and your partner could try and work things out and come to an agreement between yourselves. Generally this is referred to as the kitchen table separation/divorce. It works for a very few people because of communication issues and emotional vulnerability at this time.
Quite often though, people may manage to get one or two things agreed, but not everything; so the effort is not entirely wasted. This is particularly so if the issues that can be resolved are around the children. Keeping children out of legal disputes is extremely desirable for their future wellbeing.
The second option is mediation which is a dispute resolution method, whereby a neutral mediator acts as a facilitator between the two parties in dispute to enable them to come to an agreement about all these issues.
Mediators are skilled communicators who work with the parties in a managed way to assist them to resolve their dispute. If agreements are reached then the parties take the mediated agreement to a Lawyer acting for each of them independently. The lawyers will then advise on the agreement and shape it into a legally binding contract.
The third option is collaboration. Collaborative Law is a dispute resolution process which is managed by collaboratively trained lawyers.
As well as their collaborative training the lawyers frequently have the benefit of mediation training and techniques to assist them with their work. Everyone involved in the process signs a Participation Agreement which sets in place the ground rules for the collaborative process.
Crucially for the solicitors the agreement specifies that should the process break down the lawyers cannot continue to represent the parties and each party must seek representation elsewhere. This ensures that the lawyers will pull hard together to keep the process working for the parties and will keep their focus on resolution rather than pulling against one another or jockeying for advantage.
A number of experts who have been collaboratively trained are on hand to work with the lawyers in the collaborative process as and when required. Bringing all the family systems expertise available to work for resolution within a unified team structure having the common good of the family as the object is unique to the collaborative process. No other process has this structure.