New Year Resolution…Collaborate not Litigate?


19 December, 2014

Every year the number of divorce enquiries goes down in December, then spikes again in January. It seems that couples tend to have a 'Merry Christmas', then split in the New Year. What's merry about that, I wonder?

January sees twice as many couples begin divorce proceedings as any other time of the year. The strain of spending time together over the holiday, or the fact that many couples will wait until after Christmas to avoid upsetting their families may be the reason behind this trend.

It is a good idea, before reaching any final decision to end a marriage, to seek counselling, and also to seek legal advice at an early stage, preferably before any separation. There are several ways to safeguard family and business assets, but in a divorce the Court has powers to set aside transactions if it appears to the Court that the transaction has been carried out with the intention of defeating one party's claims for financial provision.

It may be that the Christmas period has highlighted sadness or difficulties within a marriage. The stress of family gatherings, excessive alcohol intake, additional financial strain and even office parties can prove the final straw for many couples. Rather than be hasty, take time after Christmas to take legal advice. Remember that in any separation, there is usually one party that is way behind the other in emotional terms.

There is no doubt that divorce remains financially destructive, even if the couple avoid Court proceedings, because splitting the family unit is bound to increase living costs.

So if you are contemplating separating or divorcing, whilst having clenched your teeth to make it a happy Christmas for your family, do bear the following in mind.

When relationships breakdown, hurt, bitterness and anger are often the strongest feelings.

In most cases, there are immediate difficulties that need to be resolved, to enable the couple to move forward in terms of issues involving the children, and over financial matters. There are a number of ways in which the problems can be approached:

• Mediation
• Collaboration
• Court Action

So which route should you choose?


If you choose mediation, you will both be invited to attend a meeting with one mediator.

The mediator cannot give advice to either of you, but will try and help you to resolve practical difficulties arising from your separation or divorce, exploring ways of reaching an agreement and helping you communicate effectively. The Court now expects both parties to have considered mediation as an option.


Collaboration involves two trained collaborative lawyers, each one representing one of the parties. The aim is to get you round a table to talk with both parties needing a genuine desire to make it work, a willingness to disclose honestly information about assets, and skilled trained solicitors who are practiced in working in this way. Your collaborative lawyer will act for you alone in structured meetings to reach an agreement with your ex partner. The whole aim of collaborative law is to keep the case out of the Court system, and get you making decisions and agreements direct. The specialist family lawyers group, Resolution has set up a group of collaborative lawyers like me who are trained in helping people from the collaborative law approach.

Court Action

The third option (which in my view should be the very last option) is the Court process.

This is the most costly option, with parties rarely meeting, being slow and not always giving you the desired outcome. Sometimes however there is no other option particularly if one of the parties is uncooperative in providing relevant information which can take the case forward.

Whenever you read this article, be it in the New Year or in your doctor's waiting room in the middle of summer, the options available to you will be the same. Remember that if children are involved, you will both remain parents, and it will help your children to cope better with your separation if they see that you are working things out together. I remain of the view that of the three options open to you, the Court process is the least likely to achieve this aim.

For further information or to discuss how we can help you, please contact Dawn Baker on 01772 220022 or email Dawn Baker. Dawn Baker is a Partner in the Family Department and is also a Collaborative Lawyer.

For the month of January 2015 Forbes family department will give you free advice on any family matter (limited to half an hour). This advice will, where possible, be tailored to your personal circumstances.


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