What is collaborative family law and why are some solicitors now advertising its use?
Collaborative family law is a model for the conduct of family law negotiations. It involves the parties and their respective legal representatives working together for the sole purpose of reaching a settlement in regard to the issues that might divide parties. It is sold on the basis that these four-way meetings with both spouses and their two sets of legal representatives, including solicitors and barristers, all present together represent a better problem solving approach to issues of disagreement than the normal adversarial or hostile approach.
If there is a failure to reach agreement or a threat of legal proceedings then the legal representatives are obliged to withdraw and they are prohibited from ever representing their clients again in contested proceedings. They must then assist with the orderly transfer of the matter to any new legal team hired by the parties.
There are a number of points we would make in relation to this system. Firstly, there seems to be a complete forgetfulness on the part of solicitors that they are duty bound by statue law to assist parties with reconciliation, mediation and settlement by agreement. Their choice of operating the present adversarial and hostile system is entirely of their own making. For some of them to now sell a new approach while their colleagues continue to operate the old adversarial system is nothing short of an acceptance that the system operated by the majority is flawed and has been for some time.
Pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act, 1989 and Sections 6 and 7 of the Family Law (Divorce) Act, 1996 solicitors acting for Applicants and Respondents in applications for judicial separation and divorce must prior to the applications being made
(a) discuss with the Applicant and Respondent the possibility of reconciliation and give them the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and
(b) discuss with the Applicant and Respondent the possibility of engaging in mediation to help effect a separation or a divorce on a basis agreed between the parties and give them the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and
( c) discuss with the Applicant and Respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the parties and providing for their separation
We belive that the legal practicioneers are not doing enough to encourage and assist parties in negotiating a settlement as they are duty bound to do and if they were we would not need a new legal based system.
Secondly, we would say that the pressure of reaching a settlement using the collaborative model now shifts to the legal teams if they wish to remain as representatives and in that scenario who is to say that their focus is more on a settlement at any cost rather than a fair settlement for both parties. Legal writers have critised the free government mediation service in that they have claimed that mediators through lack of training or skills may be unable to control a domineering spouse. The same concern applies here. A spouse who will not agree can exert pressure on the legal teams to either award him/her more or withdraw. Present negotiations by legal teams on the steps of the court are an example of their flawed approach to negotiations and many decisions made in such an atmosphere of hurried negotiations coupled with the threat of another adjournment have produced decisions that are not only unfair but a downright disgrace that has sown the seeds of bitterness between spouses who may have to continue together parenting their children. The change that is needed is in the attitude and practice of the legal profession to family law issues.
Thirdly, the present charges by solicitors and barristers will ensure a nice tidy sum if you are engaged in a series of four-way meetings. Collaborative law may be beneficial but it will cost you.
We believe the governments free mediation service should be improved and extended and given statutory powers to determine issues in regard to the settlement of family law issues including, the family home, custody and access to children, maintenance etc by trained and qualified mediators. If either party wishes to contest their decisions then they should have access to the courts and if the courts find against them then they should pay all costs. The State should be active in providing alternative methods of settling issues relating to marriage than by the use of our extremely busy and costly court system and lining the pockets of solicitors and barristers as they play chess with peoples lives. We have parents ending up in District Courts being threatened with jail, as if they were criminals, because they will not abide to unfair court decisions sometimes based on allegations by one spouse against the other. And why on earth should consenting couples have to apply through a Circuit Court to obtain a divorce. They married through a marriage registrar should they not be allow end the marriage through the same process. We need a new system alright, one that is far removed from the legal profession.
Friday, 9 October 2009
Thursday, 8 October 2009
Living together and legal separation
Thursday, 8 October 2009
We are both still living in the family home. How can we obtain a legal separation?
Separating spouses could, if they had agreement on all issues, make a separation agreement. However, for such an agreement to be legally binding they would have to separate on making the agreement. If they continued to live together the agreement would be null and void based on established case law. Agreements on future separation and pre-nuptual arrangements are not accepted by Irish courts. A claim to be living apart under the one roof, would be examined by the court to see are there two separate households. For instance, what are the living arrangements, do the parties provide any services for each other, do they sleep together, do they eat together, do they holiday together, how are the groceries and other household expenditure funded, do the have separate bank accounts etc. Many couples would like to think that they are separated while in fact they are just living in a bad marriage.
Alternatively, either spouse could apply for a decree of Judicial Separation before the Circuit Court pursuant to the Judicial Separation and Family Law Reform Act, 1989. The Applicant must satisfy at least one ground for the granting of the decree. There are only three grounds that support an application whereby the parties need not to be living apart. The first is that the Respondent spouse has committed adultery. The second is that the Respondent spouse has behaved in such a way that the Applicant cannot reasonably be expected to live with the Respondent. It is doubtful if there would be consent on these two grounds and therefore it can be expected that the Applicant would have to prove to the Court the accuracy of the claim and defend it under cross examination.
The third ground under Section 2(1)(f) that lends support to an application while living under the one roof is 'that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceeding the date of the application'. This condition may exist on the basis that one or more parties have withdrawn their consent to the marriage for a period of over one year or they may have been living in separate bedrooms on the understanding that the marriage was over for over one year. It is not for the Court to consider who caused the marriage to break down or for what reason. The Court is required to examine all the circumstances that show that a normal marital relationship has not existed for a period of one year. And while there is no definition what a normal marital relationship is it can be expected that it means cohabitation based on a loving and caring relationship. So even though the 'behaviour' of a spouse towards the other is a ground for a decree of judicial separation in itself, behaviour could also be relied upon under Section 2(1)(f) in that a normal marital relationship has not existed for over a year because of the behaviour of one spouse towards the other. Under this ground the other parties behaviour is less likely to be examined by the Court as the Applicant has refused to accept the behaviour and has withdrawn consent for the marriage. Likewise, the Applicant believes that the Respondent has committed adultary. The Applicant may have no proof but he/she is not required to prove it if not seeking a decree under that ground. It may be that because the Applicant believes his/her spouse committed adultary he/she has withdrawn from the marriage, declared it over and this situation has existed for over one year.
We are both still living in the family home. How can we obtain a legal separation?
Separating spouses could, if they had agreement on all issues, make a separation agreement. However, for such an agreement to be legally binding they would have to separate on making the agreement. If they continued to live together the agreement would be null and void based on established case law. Agreements on future separation and pre-nuptual arrangements are not accepted by Irish courts. A claim to be living apart under the one roof, would be examined by the court to see are there two separate households. For instance, what are the living arrangements, do the parties provide any services for each other, do they sleep together, do they eat together, do they holiday together, how are the groceries and other household expenditure funded, do the have separate bank accounts etc. Many couples would like to think that they are separated while in fact they are just living in a bad marriage.
Alternatively, either spouse could apply for a decree of Judicial Separation before the Circuit Court pursuant to the Judicial Separation and Family Law Reform Act, 1989. The Applicant must satisfy at least one ground for the granting of the decree. There are only three grounds that support an application whereby the parties need not to be living apart. The first is that the Respondent spouse has committed adultery. The second is that the Respondent spouse has behaved in such a way that the Applicant cannot reasonably be expected to live with the Respondent. It is doubtful if there would be consent on these two grounds and therefore it can be expected that the Applicant would have to prove to the Court the accuracy of the claim and defend it under cross examination.
The third ground under Section 2(1)(f) that lends support to an application while living under the one roof is 'that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceeding the date of the application'. This condition may exist on the basis that one or more parties have withdrawn their consent to the marriage for a period of over one year or they may have been living in separate bedrooms on the understanding that the marriage was over for over one year. It is not for the Court to consider who caused the marriage to break down or for what reason. The Court is required to examine all the circumstances that show that a normal marital relationship has not existed for a period of one year. And while there is no definition what a normal marital relationship is it can be expected that it means cohabitation based on a loving and caring relationship. So even though the 'behaviour' of a spouse towards the other is a ground for a decree of judicial separation in itself, behaviour could also be relied upon under Section 2(1)(f) in that a normal marital relationship has not existed for over a year because of the behaviour of one spouse towards the other. Under this ground the other parties behaviour is less likely to be examined by the Court as the Applicant has refused to accept the behaviour and has withdrawn consent for the marriage. Likewise, the Applicant believes that the Respondent has committed adultary. The Applicant may have no proof but he/she is not required to prove it if not seeking a decree under that ground. It may be that because the Applicant believes his/her spouse committed adultary he/she has withdrawn from the marriage, declared it over and this situation has existed for over one year.
Thursday, 9 July 2009
Solicitors Fees
Q. What do the solicitors charge?
A. The solicitor's fees for a Separation Agreement can be very high, for instance we have seen solicitor's bills for a charge of €250 per hour for attendance alone. Any couple who intend employing solicitors and barristers should give consideration to the level of their consent on issues and the value of their properties before deciding what route they wish to take and certainly they should look for a reasonable estimate from more than one solicitor rather than proceeding to grant a blank cheque.
Solicitor's fees vary depending on the level of agreement at the outset and the value of assets but generally they are charging approx. €3,000 to €4,000 each per spouse for a Separation Agreement (although one of our divorce clients was recently asked for €8,000 for a Separation Agreement). Their charges for a Judicial Separation can vary between €5,000 and €50,000 + , each per spouse, depending on the level of acrimony that exists or is made to exist by the time the process arrives in court and of course the value of a couples assets.
For more information go to www.diyseparationagreement.ie
A. The solicitor's fees for a Separation Agreement can be very high, for instance we have seen solicitor's bills for a charge of €250 per hour for attendance alone. Any couple who intend employing solicitors and barristers should give consideration to the level of their consent on issues and the value of their properties before deciding what route they wish to take and certainly they should look for a reasonable estimate from more than one solicitor rather than proceeding to grant a blank cheque.
Solicitor's fees vary depending on the level of agreement at the outset and the value of assets but generally they are charging approx. €3,000 to €4,000 each per spouse for a Separation Agreement (although one of our divorce clients was recently asked for €8,000 for a Separation Agreement). Their charges for a Judicial Separation can vary between €5,000 and €50,000 + , each per spouse, depending on the level of acrimony that exists or is made to exist by the time the process arrives in court and of course the value of a couples assets.
For more information go to www.diyseparationagreement.ie
Monday, 6 July 2009
Section 5 Court Certificate
Q. What is a Section 5 Court Certificate?
A. Under Section 5 of the Judicial Separation and Family Law Reform Act, 1989 any applicant, who is represented by a solicitor , must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a Separation Agreement. The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a Separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse.
For more information go to diyseparationagreement.ie
A. Under Section 5 of the Judicial Separation and Family Law Reform Act, 1989 any applicant, who is represented by a solicitor , must receive from the solicitor a certificate stating that the solicitor has complied with the section and discussed the possibility of reconciliation between the spouses, has given the names of qualified persons who could help effect a reconciliation between the spouses who have become estranged, including the names and addresses of mediators, and discussed the possibility of engaging in mediation to help effect a Separation Agreement. The certificate must also state that the solicitor has discussed with the Applicant the possibility of effecting a Separation by the negotiation and conclusion of a Separation Deed or written Separation Agreement with the Respondent spouse.
For more information go to diyseparationagreement.ie
Friday, 3 July 2009
A DIY Separation Agreement
Q: How does your service work?
A. On receipt of payment we will send, by return post, a questionnaire designed to obtain the necessary information. The questionnaire is easy to follow with notes on its completion and is continually updated so that the information can be exchanged hassle free and from the comfort of your own home. We are available by telephone, mail or email to answer any queries you may have in relation to the information required. When we receive the returned questionnaire we will examine it closely to ensure we have the required information and we will make contact if necessary. When we are satisfied with the information given us we will complete the necessary paperwork and have it with you within five working days.
For more information go to www.diyseparationagreement.ie
A. On receipt of payment we will send, by return post, a questionnaire designed to obtain the necessary information. The questionnaire is easy to follow with notes on its completion and is continually updated so that the information can be exchanged hassle free and from the comfort of your own home. We are available by telephone, mail or email to answer any queries you may have in relation to the information required. When we receive the returned questionnaire we will examine it closely to ensure we have the required information and we will make contact if necessary. When we are satisfied with the information given us we will complete the necessary paperwork and have it with you within five working days.
For more information go to www.diyseparationagreement.ie
Friday, 29 May 2009
Separation Agreement or Judicial Separation
Q: Do I need to have a Separation Agreement or Judicial Separation before applying for divorce?
A. No, you are not required to have a mediation or Separation Agreement or a Judicial Separation before applying for a divorce.
A. No, you are not required to have a mediation or Separation Agreement or a Judicial Separation before applying for a divorce.
Monday, 18 May 2009
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