COLLABORATIVE FAMILY LAW PRACTICE- WHAT IT MEANS

Collaborative Family Law Practice - How it works

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Family law practice in common law jurisdictions such as Canada, the United States, and England is typically adversarial. This means that couples seeking a divorce often need to invoke fault-finding grounds to separate and divorce, which can create further hostility between the spouses.

According to recent data, the divorce rates in the United States, Canada, and UK are about 40% to 50%. These numbers change as time progresses. In contrast, divorce rates in India and other Asian countries are generally lower.

However, as economic development occurs and women become more educated and seek equality, the divorce rate tends to go up. This can be due to various reasons, such as a shift in cultural attitudes towards marriage and divorce, changing gender roles, and increased access to legal resources.

Collaborative family law practice seeks to find consensus on issues such as child custody and access, separation of homes, division of jointly collected assets in the marriage, counseling support, and support amount calculations. The goal is to reduce tension and hostility, which is far more conducive to resolving issues amicably with much less expense.

Unfortunately, the legal training provided to lawyers does not emphasize the need to arrange separation amicably when emotions of dissatisfaction with the other spouse are running high. In court-managed proceedings, children's feelings do not receive adequate attention. As a result, many spouses do not know how to deal with the matter, and anger can spill over into calling the police. Even if there is only a slight hint of evidence of assault, charges can be laid, and a peace bond or temporary restraint order may be granted.

Collaborative practice enables other skills to be brought into play, such as a psychologist and a financial consultant, rather than just relying on lawyers who may not be skilled in these areas. Lawyers are more expensive than psychologists and financial consultant, and pouring your heart out to a lawyer can end up in a large bill.

When an agreement is reached, the separation is documented by a separation agreement, and pertinent parts of that agreement can be used for a divorce. With all major terms agreed, divorce can be obtained far more cheaply than through an adversarial approach.

In the UK, US, and Canada, couples can separate without obtaining a court order or legal sanction. However, it's always advisable to seek legal advice when separating, especially if there are issues such as child custody, financial support, or property division that need to be resolved.

India, a couple can file a petition for judicial separation, which is a formal legal process that allows the couple to live apart while remaining legally married. The court will consider factors such as the grounds for separation, custody of children, and financial arrangements before granting a decree of judicial separation.

In legal regimes with religious traditions, such as Iran, family law issues such as child custody, support obligations, and separation of the matrimonial home are typically determined by the religious legal regime. However, if parties are domiciled in Canada, Canadian law applies to them, and any legal issues arising from their separation or divorce will be determined according to Canadian law.

It's worth noting that in Canada, parties are free to observe their religious traditions and practices, as long as they comply with Canadian law. For example, parties can obtain a religious divorce as a complementary process to a legal divorce, as long as it doesn't contravene Canadian law.

When parties live in Canada and wish to observe their religious traditions, it's important to ensure that the separation agreement reflects this and that parties agree to abide by the jurisdiction of domicile. This ensures that any legal issues arising from the separation or divorce will be resolved according to Canadian law, while allowing parties to observe their religious traditions as they see fit.

Overall, it's important for parties to seek legal advice and understand the legal implications of their religious practices and traditions when it comes to family law issues. By working with legal professionals who understand both the legal and cultural aspects of the issue, parties can ensure that their interests are protected and that their rights are respected.

Not all lawyers are taught in common law jurisdictions, or are familiar with this arrangement of collaborative family law separation arrangement, and it is incumbent on the client who first reaches the lawyer to educate the other spouse on how to use collaborative lawyers to start negotiating and solving complex issues by agreement. It is advisable to have a collaborative agreement between lawyers and respective clients to agree in advance that parties will use a consensual approach to resolution rather than legal proceedings.

The costs of separation can be significantly higher with an adversarial approach than with a consensual agreement. Therefore, it is crucial to consider the option of collaborative family law practice, which can save time, money, and reduce emotional distress.

In summary, collaborative family law practice is an alternative to the adversarial approach in traditional family law practice. It seeks to find consensus on issues related to divorce, child custody, access, separation of the matrimonial home, division of assets, counseling support, and support amount calculations. Collaborative practice can enable parties to use other professionals, such as a psychologist and a financial consultant, and results in a separation agreement that can be used for a divorce. It is less costly and less emotionally distressing than the adversarial approach. Collaborative practice may not be known or familiar to all lawyers, but clients can educate their respective spouses to start negotiating and solving complex issues amicably. A collaborative agreement between lawyers and clients is advisable to agree in advance that parties will use a consensual approach to resolution.

·??????Jay Chauhan is a retired Deputy Judge in Canada, lawyer in India, Ontario and U.K. and has lectured before several bar associations around the world. He also leads the Angel Mentorship Group.