How a collaborative approach to divorce in Scotland is helping to minimise conflict
If your image of divorce is a bloody battlefield of husband and wife, expensive lawyers, frosty court rooms and children being told to forget birthday and Christmas gifts for the next decade, a new style of Collaborative Practice may come as a surprise.
As unlikely as it might seem when the focus is on people splitting up, ‘collaborative divorce’ has become an increasingly common way for couples to mutually agree a legal, financial and emotional arrangement for a separated or ‘parenting apart’ future.
The aim, reports Consensus Collaboration Scotland – the umbrella association for professionals and experts who employ a collaborative approach to divorce – is to minimise conflict between couples, put children first, ensure good financial choices for all parties and minimise future emotional damage.
There are usually three arms to the collaborative process between couples, whether matrimonial or civil: legal, financial and emotional welfare.
For Kevin Mackenzie, of Acumen Financial Planning in Aberdeen, Collaborative Practice has become a growing branch of his work. He is both a qualified financial planner and also a “financial neutral”.
He explains: “The multi-disciplinary collaborative approach to divorce sees lawyers dealing with the legal side of a split; financial neutrals assist with enabling realistic financial planning for both parties and any children; and family councillors or psychotherapists help with the emotional impact of a split.
“There is no longer the ‘them-and-us’ approach, but rather everyone sits down together and mediates and collaborates towards a mutual and, as much as possible, harmonious settlement.
“If it sounds a bit unlikely it’s actually not, because these days most couples do not want to spend their savings on arguing in the courts but rather they want to get on with the separation and move on with their own lives or the ‘parenting apart’ of their children.”
Mackenzie’s role as a financial neutral is to work with couples over what he calls the “interim phase” of separation. He expands: “This is the phase between a date of separation being noted with a lawyer and the couple reaching a formal agreement.
“For example, many will have a joint home, or perhaps one person and the children are still living in the family home while the partner has moved to temporary rented accommodation.
“They might still have a shared mortgage, income, costs and children. I help them, during this phase, to look at how they can manage financially and move towards a secure financial future separately.”
A financial neutral works with couples in an impartial capacity to guide couples through their financial options and to assist them to make informed decisions about the division of assets.
Mackenzie says: “Many couples will require help to work out exactly what their income and outgoings are on a day-to-day basis and then how to manage financially when they separate.
“I get them to assess the facts, to work out how they can meet out-goings and to reduce any costs where possible, for example moving to an interest-only mortgage in the interim period and cutting back on discretionary expenditure.
“This is a time when couples need to try to work together to minimise the financial burden on either party. Sometimes, it might not seem like it’s fair for one side or the other but it’s a phase that will then lead to a workable financial arrangement.”
Mackenzie suggests that the interim period can last for up to about six months, especially for couples with children, and this can be beneficial in terms of reducing the angrier emotions straight after a split.
He says: “At the start, when couples first decide to separate, emotions can be running high. As time passes and each person settles into the interim phase of living separately, then I usually find that things calm down. We can then start to discuss the future financial plans collaboratively.”
‘Reality testing’ is a good starting point. A financial neutral assists a couple to work out what each will need financially – and what they can afford – in terms of property and living expenses post-separation.
They are shown how to look at ‘liquidity’, that is whether assets are tied in pensions, property or perhaps buy-to-lets, and whether there is enough cash to allow for the purchase of separate homes and household costs.
If the couple have children, the dialogue will take into account outgoings for off-spring, such as private schooling, tutors and activities, as well as smaller – perhaps seemingly incidental – costs, such as school clothes and lunches.
Mackenzie notes: “This is the stage where we test reality. It might be that they both want to live in the same type of house that they have previously shared, or both live close to a child’s school, but this is not always possible due to liquidity.
“Maybe the husband or wife is a larger earner and therefore feels more secure moving forward, while the other person feels more vulnerable because they are career disadvantaged, having stayed at home to care for the children.
“We look to create a sensible dialogue to what should be possible and work out how it can be achieved collaboratively, for the best outcome for both parties and the children.”Clear agreements on the future care of the children are discussed, too. Many couples choose “parenting apart”, which means they share the care of the children.
Mackenzie says: “Part of financial planning after separation will determine who pays for what for the children, and this is usually based on where they live or how the care is divided. In many cases, both homes need to be able to accommodate the children, so this needs to be looked at realistically.
“There are a lot of larger and smaller details to process, but many couples find that through a process of calm collaboration with a financial neutral they can work towards a workable financial separation.
“In many cases, I see couples understanding that they have shared interests, rather than just wanting it all to go their own way. For example, they want their children to go to a good school, to enjoy after-school activities and to be happy, and they can see that they need to work together to make this happen.”
The final stage of collaborative divorce involves five-way meetings with the couple, two lawyers and a financial neutral to create a separation agreement in writing.
Mackenzie says: “If we get the collaborative discussion phase right, with both people agreeing on a division of assets, then there is a good chance of a fairly swift move to a legal agreement, also called a separation agreement. This is the part that the lawyers advise on and make binding.
“I have witnessed time and time again how this collaborative approach brings couples closer to an understanding of how to move on with their separate lives.
“It’s very different from the often far more antagonistic version of divorce through the courts, and I believe most couples would choose collaboration rather than fighting so as to enable them to move on with their separate lives.”