Contents

• What is collaborative law?
• Private law Children Act cases
• Non-molestation general information
• Ancillary Relief cases

What is collaborative law?

Collaborative law in family and matrimonial practice is a specific way of working designed to achieve resolutions to legal problems by putting clients at the centre of the legal process.

Collaborative law is a form of 'alternative dispute resolution', or ADR, much like mediation.

However mediation involves partners and/or parents working with one professional whose job is to build on common ground to achieve agreement, and solicitors are then brought in to give the agreement legal effect. 40% of mediated cases involving children related issues succeed whereas 34% of those involving financial settlements succeeded ¹ .

In collaborative practice each partner/parent has their own solicitor who can advise them about the application of the law to their circumstances, and both solicitors work together with both partners/parents to explore difference options available to resolve differences. Those same solicitors then work together to give legal effect to the agreement reached. Around 85% of cases are successful ² .

In my opinion the collaborative way of working is so successful because both solicitors work together, as opposed to against each other, to enable their clients to explore their hopes, desires, fears and anxieties in a safe and carefully managed forum. The solicitors work very hard to make sure that there is a safe place for each partner/parent to say what they feel they need to while focussing constructively on solutions their clients prefer.

As with mediation collaborative practice provides cost saving opportunities as issues are discussed and resolved organically without the traditional flutter of solicitors letters and costly court hearings.

Overall collaborative practice aims to maintain lines of communication and good working relationships. These are of particular importance where clients will need to co-parent their children, and be able to put their children's needs and well-being first.

If you would like to talk to us about using the collaborative approach to resolving your family law issue, please contact us .

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Private law Children Act cases

Clearly it is best for matters relating for children to be decided by their parents, but unfortunately it is not always possible to agree. The Court has jurisdiction to make orders relating to children under the Children Act 1989. When considering issues in relation to a child, such as where s/he lives, how much s/he sees a parent they don't live with, which school they should attend or any other matter the court investigation will involve the following process:-

a) The first directions appointment:-
Once you, or the other parent, have issued an application the court will set a hearing to determine what evidence is required to be placed before the court in order for the court to decide the issue.

Very often the court will expect the parents to attend a meeting with the court welfare (now CAFCASS) officer before the hearing to see whether issues can be resolved by agreement, or whether any compromises can be reached.

Usually the court will direct that the child, and either or both parents, is seen by the CAFCASS officer who will then report back to the court.

In most cases the court will also direct that the parties file statements setting out their appraisal of what it is the child's best interests.

The court may also direct that expert evidence is obtained.

The court may also make an interim order to settle arrangements until a final order can be made.

b) Review hearings:-
In certain cases, usually those where the parties have been able to make some progress from the initial stalemate, the court will schedule a review hearing after the CAFCASS report has been filed.

In the best of circumstances the parties will be able to agree a resolution with the guidance provided by the CAFCASS officer.

When a review hearing is held and a permanent resolution can't be reached the court will set the application down for a fully contested hearing.

c) Final hearing:
When the parties haven't been able to resolve the issues between them despite having guidance from CAFCASS a full trial of the issue is held by the court.

The court will hear oral evidence from the parties, who are cross-examined by the other parties' representative, and in some instances from the CAFCASS officer or any other expert nominated by the court to file evidence.

Once the evidence and legal submissions have been heard the District Judge will impose an order dealing with the application formally.

The District Judge will also consider whether there should be an order that either party pay the other's costs.

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Non-Molestation general information

A non molestation order is an order prohibiting a third party (the Respondent) from 'pestering, harassing, threatening or using violence against you. It used to be known as an restraining order.

Pestering includes behaviour intended to cause you trouble, to annoy your or cause you inconvenience.

Domestic violence is now widely recognised to include any incident of threatening
behaviour, violence or abuse (which can be psychological or physical, sexual, financial or emotional).

In certain circumstances the Court will grant you an order where it considers that your health, safety or well-being, or that of your child/ren, needs to be protected.

The information you provide us with will enable us to confirm whether you are able to apply for any order from the Court.

If you need immediate protection and the behaviour you are subject to is so serious you can go to Court without giving the Respondent notice of your application. You will need to explain to the judge why circumstances are so serious that an application without notice needs to be made (for example that if the Respondent hears about your application your safety or that of your child/ren will be in serious jeopardy).

If the Judge agrees with you s/he will make the order immediately on a temporary basis.

Even if the Judge does not make an order to protect you a direction will be made for a return date hearing within a short period of time. You must serve the order, and will be required to personally serve the order on the Respondent. You must not do this yourself but must instruct someone else to do it for you, ideally a process server.

If you have obtained a molestation order then you must also serve a copy upon the police so that they will arrest the Respondent if s/he breaches the order. This assumes that you have been successful in attaching a power of arrest to the terms of the order.

Some time later there will be a final hearing at which the Respondent can give evidence if they do not agree with your version of events, and it will be for the Judge to decide whether to make a final order.

If your application is heard on notice and the Respondent contests it the Court will have to hear all of the evidence in order to decide whether or not an order should be made.

Sometimes when you return to Court the Respondent may offer undertakings (serious promises to the Court) not to behave in certain ways in the future (they are not admitting that your allegations are true, however). The Judge must only accept these undertakings if s/he feels that you are adequately protected. If your application has been made in a Combined Court then the Judge is unlikely to accept those undertakings and will want your case to proceed to a final hearing. There is a possibility that the Respondent will face criminal prosecution too.

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Ancillary Relief cases

In many cases it is not possible to agree the division of matrimonial assets without detailed legal advice, and we always recommend that you obtain such advice.

It is always more desirable to achieve a negotiated settlement, once legal advice as to the application of relevant legal principles to your circumstances has been received, as the only other solution is for the court to impose a resolution; and the risk is that the court will deliver a judgement neither you nor your spouse is particularly happy with.

A negotiated settlement is usually achieved with the help of solicitors, although for some couples attending mediation and reaching a settlement in that way may be appropriate.

Whichever way it is achieved a negotiated settlement will normally avoid a lot of stress and expense, and will also usually provide a swifter resolution than court proceedings.

The first task to complete is to establish the extent of the matrimonial assets and income. Consideration will be given to all of the assets and liabilities whether they are in sole or joints names.

This is normally achieved by mutual exchange of financial information, usually in Form E (a comprehensive court form designed to set out a party’s financial affairs fully).

Once you have received advice as to the range of possible settlements the court could impose a negotiated settlement should be achievable as long as both spouses invest the necessary energy and good will for compromise.

If you reach an agreement you must then invite the court to make an order on those terms, and this process is achieved by making an application for an order by consent. It is strongly recommended that you obtain assistance from a solicitor in completing this task as the order is required to be drafted in a certain format and court forms are to be submitted with the application.

When you file an application for an order by consent the District Judge will review the agreement reached. It is very important to have obtained assistance from a suitable legal professional in reaching your agreement as that will reduce the risk of the District Judge refusing to approve your draft order.

Where it is not possible to achieve a settlement by agreement financial proceedings will have to be issued for the court to decide how matrimonial assets and income should be shared.

The issuing of financial proceedings brings the court timetable into operation as follows:-

a) Financial disclosure:-

The first task set out in the court timetable is the exchange of Form Es between the parties.

This form requires each party to disclose every asset and liability they have, whether those are in their sole name or held jointly with someone else. The parties are also required to give details of all of their income whatever the source.

If one of the parties refuses to co-operate with the filing deadlines set out by the court it will be possible for the other to make applications for orders requiring compliance, and ultimately the court is able to attach a penal notice to an order for disclosure. A penal notice provides for the incarceration of the offending party, and compliance with court orders is therefore vital.

If you are concerned that your spouse will seek to dissipate assets in this way you must obtain the earliest possible specific legal advice.

b) First appointment preparation:-

The next stage in the process set down by the court is to require the parties to prepare for the first directions appointment.

The first directions appointment is intended to enable the court to decide what information over and above that contained in Form E is required to allow the District Judge to make a financial order.

Typically the court will make directions for expert valuations of certain assets, or for expert reports in relation to pensions funds which may need to be shared.

In order for the court to have a good grasp of the issues between the parties they, or their representatives, are required to draft a statement of issues and chronology.

Further in order to assist the court in deciding what further information may be required the parties are also required to draft questionnaires in relation to the other party’s Form E.

At the first directions appointment the court will either make a direction that the parties respond to each other’s questionnaires as drafted, or amend the questionnaires to add or remove questions.

In some cases the parties will feel that they have all of the information they need to progress their case, and they may wish to use the first court hearing as a financial dispute resolution hearing (usually the second hearing).

c) Financial Dispute Resolution hearing:-

After the first directions appointment the parties will need to comply with the court directions made within the timeframes given.

Once the further information required by the court has been provided the parties may feel that they are able to negotiate a settlement, and once a settlement is agreed they can make an application to the court for a financial order by consent.

This would then signal the end of the proceedings as the court, if the order is approved, will be satisfied that no further intervention on its’ part is needed.

Where the parties are unable to settle matters despite compliance with the court directions they will need to attend the financial dispute resolution hearing, which is intended by the court as a process by which everyone can be brought together to try to reach a settlement.

In order to help the parties iron out any matters of difference between them and reach a settlement the District Judge at the financial dispute resolution hearing will give an indication of the order s/he would make if they were imposing a settlement at that time.

It is usually then possible for the parties to reach an agreement, which they place before the District Judge for approval and if approved in many instances they can obtain their financial order from the court on the day.

In cases where the financial dispute resolution hearing doesn’t help the parties reach a negotiated settlement the court will make directions for the preparation of the final hearing.

d) Final Hearing:-

The final hearing is essentially a trial at which the District Judge will hear evidence from the parties, who will be cross-examined on that evidence, in order to decide how the matrimonial assets should be divided.

Where there was no settlement at the financial dispute resolution hearing, the court will direct the party who issued the financial proceedings to prepare a bundle of evidence to be used during the trial.

Once the court has heard all of the evidence, and legal representations as to how legal principles should be applied to the relevant facts, the District Judge will make an order settling the parties financial affairs.

The District Judge will also consider whether either party should pay all, or some, of the other party’s costs.

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1 As reported in 'Monitoring publicly funded family mediation – report to the Legal Services Commission published at http://www.adrnow.org.uk/go/SubPage_111.html

2 As reported by Resolution at http://www.resolution.org.uk/news-list.asp?page_id=228&n_id=7