The CA's role in a 'good divorce'
27 Aug 09
Enquiring whether it was possible to have a ‘good’ divorce would no doubt have resulted in a few furrowed brows, strange looks and sceptical laughs in the not too distant past
by Judith Scott
The development of collaborative family law in Scotland and, crucially, the formation of the Scottish Collaborative Family Law Group (SCFLG) in 2006 means something approaching a perfectly amicable split, as opposed to a rehash of the War of the Roses, is an option for those whose couplings have come to a conclusion.
Collaborative family law takes a less adversarial, more solution orientated approach to separation, significantly increasing the likelihood of parties resolving their issues while preserving an amicable relationship.
This is achieved by allowing both parties to retain control of the dispute resolution process and the eventual outcome, therefore avoiding the acrimony associated with a court battle.
It is a dignified and respectful approach that enables separations to proceed without the risk or fear of an unknown, imposed decision or pressured last-minute compromise that the parties do not fully endorse or understand.
Both parties retain separate solicitors trained in collaborative law for the duration of the process, with all participants agreeing to work together respectfully.
Widely used in the United States where it has its roots, it is a relatively new concept in Scotland. It has received Scottish Parliament backing with Nigel Don MSP commending solicitors in Scotland who are developing collaborative law and Justice Minister Kenny MacAskill pledging to assist the approach.
Recently, the SCFLG has provided interdisciplinary training – in which I took part – to business valuation experts, independent financial advisers and divorce coaches in a bid to widen the range of services available to parties considering the collaborative route.
Its timing could hardly have been more perfect.
With the human cost of financial turmoil never far from our minds, it is understandable why news linking an increase in divorce rates to economic uncertainty might be bypassed.
Is a piece of information that further sours the national mood really necessary when people are looking for a hint of light through the recessionary cloud?
And yet that is exactly what surveys, such as the one conducted earlier this year by Divorce Online, are telling us.
Whether it is down to the sudden cessation of a free-spending lifestyle that papered over the cracks in an unhappy union or the stresses and strains caused by the threat of redundancy, the financial crisis has led to a 50 per cent increase in separations.
These cases often result in irreparable damage to the fabric of family life, with younger members of the family most prone to the effects.
Now, with the SCFLG having exposed financial professionals to the training of experienced collaborative law practitioners from Vancouver, it has ensured all three strands of a separation – legal, financial and, when coaches are involved, emotional – can be dealt with effectively.
Financial settlements, especially in the current climate, always prove to be particularly thorny issues that collaborative separations can struggle to overcome.
Accountants such as myself and my colleagues from BDO Stoy Hayward’s investment management team can act as financial neutrals, utilising our expertise to assist parties in the division of assets and suggest future financial arrangements which are fair and acceptable to both parties.
These are largely more creative and flexible than those put forward during litigation and ensure potentially sensitive financial information is not made public in court hearings.
Anne Hall Dick, a family law specialist with Mowat Hall Dick, an accredited family law mediator and training convenor of SCFLG, believes interdisciplinary collaborative practice is a perfect fit for the legal framework in Scotland which, as she points out, is geared towards financial fairness for both parties and co-operation over children.
She suggests the inclusion of financial professionals and coaches in the structured dialogue of the collaborative process helps allow separation to become a transition to a workable future, rather than disaster management.
Involving financial practitioners was a logical step for the SCFLG to take and one that should help “jaw jaw, not war war”, as Anne says, invoking the spirit of Winston Churchill, to become a mainstream option for those considering divorce proceedings.
Judith Scott, director of forensic accounting at BDO Stoy Hayward in Scotland is a chartered accountant, an accredited mediator and a business valuation expert
Watch her video interview on forensic accounting and collaborative law here